A transgender women who was denied her state pension by the UK courts has had the decision ruled as unlawful by the European Court of Justice.

The women, known as MB and born in 1948, had her state pension refused when she turned 60 in 2008, on the grounds that she chose not to annul her marriage, meaning she did not hold a full certificate of recognition on her change of gender.

MB and her wife married in 1974, while MB underwent gender reassignment surgery in 1995. The pair choose to remain married for “religious reasons”.

However, an EU directive prohibits discrimination “on the grounds of sex with respect to state benefits”.

The ruling said: “A person who has changed gender cannot be required to annul the marriage which he or she entered into before that change of gender in order to be entitled to receive a retirement pension at the age provided for persons of the sex which he or she has acquired.

“Such a condition constitutes direct discrimination based on sex.”

Women in the UK born before 6 April 1950 are able to apply for a state pension at the age of 60, while for a man born before 6 December 1953 the pensionable age is 65.

The EU recognises that recognition of change of gender and marriage are matters which fall on member states, but that in turn member states must respect EU law, “in particular, the principle of non-discrimination when they exercise their powers in that area”.

“It concludes from this that the UK legislation treats less favourably a person who has changed gender after marrying than it treats a person who has retained his or her birth gender and is married,” the court said.

The court ruled the the UK’s statutory pension scheme is to provide protection against the risks of old age, “irrespective of marital status”.

“The court finds that the UK legislation constitutes direct discrimination based on sex and is, for that reason, prohibited by the [EU] directive,” it concluded.

The lawyers who acted for MB pro bono, Chris Stothers of Freshfields Bruckhaus Deringer and Jacqueline Mulryne of Arnold & Porter, said: “We are delighted with today’s judgment, which vindicates our client’s determination to challenge the unlawful and discriminatory decision of the UK government to refuse to recognise her change of gender or to pay her state pension.

"After almost a decade, MB will finally be paid her pension and recognised as a woman by the government. This is a small decision but it has great importance in the move towards increased equality and respect."

“The court rightly recognised that the DWP’s treatment of our client, in requiring annulment of her marriage before recognising her gender and paying her pension, was directly discriminatory and could not be distinguished by the desire to avoid same sex marriage.

"The case now returns to the Supreme Court to apply the ruling, although we are hopeful that the DWP will apply the ruling and recognise our client’s gender without any further delay."

A DWP spokesperson said: “We are carefully considering the implications of the Court of Justice of the European Union’s judgement and will await the verdict of the Supreme Court.”

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