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Sarah Margaret Richards v Secretary of State for Work and Pensions Sarah Margaret Richards had undergone male to female gender reassignment and claimed a pension prior to reaching the age of 65. The DWP refused the claim and the case was taken to the European Court of Human Rights. The court upheld her right to receive a pension at the age prescribed for women.
On 12 March 2002, the claimant’s application for a pension was refused on the ground that ‘the claim was made more than 4 months before the claimant reaches age 65’, which is the retirement age for men in the United Kingdom.
She appealed to the Social Security Commissioner, claiming that, the refusal to pay her a retirement pension as from the age of 60 was a breach of Article 8 of the European Convention, as well as discrimination contrary to Article 4 of Directive 79/7.
Article 4(1) of Directive 79/7 provides:
"The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:
- the scope of the schemes and the conditions of access thereto,
- the obligation to contribute and the calculation of contributions,
- the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits."
Article 7(1) of Directive 79/7 allows Member States to detemine the pensionable age for the purposes of granting old-age and retirement pensions.
The Secretary of State for Work and Pensions submitted that
“the claim by the appellant in the main proceedings did not fall within the scope of Directive 79/7. According to him, Community law provides only for a measure of coordination for old-age benefits but does not confer a right to receive such benefits. Moreover, Ms Richards had not been discriminated against having regard to those who constitute the correct comparator, namely men who have not undergone gender reassignment surgery.”
The case was subsequently referred to the European Court, which rejected the Secretary of State's argument stating:
“Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security is to be interpreted as precluding legislation which denies a person who, in accordance with the conditions laid down by national law, has undergone male-to-female gender reassignment entitlement to a retirement pension on the ground that she has not reached the age of 65, when she would have been entitled to such a pension at the age of 60 had she been held to be a woman as a matter of national law.”
The Gender Recognition Act 2004 came into force on 4 April 2005. This allowed anyone who has been granted a full gender recognition certificate to receive state benefits appropriate to his or her acquired gender not those payable to his or her birth gender.
