UK top court split on transgender woman’s pension right

LONDON – Britain’s top court said Wednesday it was unable to agree on the case of a transgender woman who was denied a female pension because she refused to divorce her wife.

Five Supreme Court judges said the Court of Justice of the European Union must decide the case.

The claimant, who is now 68, applied for her state pension at age 60 in 2008, but was refused because she did not hold an official “gender recognition certificate.” She was told she would have to wait till 65, the age for men.

Under the law at the time, to get a certificate the applicant would have had to end her marriage to the wife she wed in 1974, when she was a man.

The judges said the claimant is a Christian and “she and her wife continued and still continue to live together and wish to remain married. For religious reasons, they are unwilling to see their marriage annulled.”

The Supreme Court justices said the Luxembourg-based European court would have to decide whether, under EU law, Britain had the right to insist that “a person who has changed gender must also be unmarried in order to qualify for a state retirement pension.”

Britain voted in June to leave the EU but is likely to remain a member for several years while complex divorce proceedings are worked out.

The claimant, identified only as MB, has fought her legal battle against the government for years. In 2014, the Court of Appeal ruled against her, but acknowledged she had suffered “a real misfortune,” and legal changes had “come too late” to help her.

Britain legalized same-sex marriage in 2014, and transgender people can now receive recognition of their new gender while remaining married.

The government is also raising the pension age for women so that it converges with the age for men.