The Advocate General has, today, handed down an opinion stating that the UK is in breach of EU law.
In the UK, men are entitled to draw a state pension at 65, but women are entitled to draw a state pension at 60.
Sarah Richards is a male-to-female transexual. She underwent gender reconstruction surgery in 2001. In 2002, she applied to be paid her state pension from the age of 60, but was refused by the DWP on the grounds she was still male.
Advocate General Jacobs considered that in that situation the correct comparator is a female person whose identity is not the result of gender reassignment surgery.
In this instance, Ms Richards was denied her pension in circumstances where, had she been registered as female at birth, she would have been entitled to it. The alleged discrimination lies in the United Kingdom's failure to recognise transsexual persons in his or her acquired gender on equal terms with persons recorded as of that gender at birth. The Advocate General therefore considered that it is contrary to Community law for a Member State to refuse to grant a retirement pension before the age of 65 to a male-to-female transsexual where that person would have been entitled to a pension at the age of 60 had she been regarded as a woman as a matter of national law.
Richards v Secretary of State for Work and Pensions (press release - full text of opinion not available until later today)
[Thanks to Marianna Patane of White & Case for telling me about this case]