Thursday October 5th, 2000

European court to rule on rights of transsexuals

Clare Dyer, legal correspondent

A former NHS nurse’s legal challenge to entitle her transsexual “husband” to benefit from her pension if she dies was yesterday referred to the European court of justice by the court of appeal.

The nurse, who cannot be named, contends that the NHS pension scheme discriminates against her and her partner, who was born a woman, on grounds of sex.  She also argues that the denial of a survivor’s pension breaches the European convention on human rights, incorporated into UK law this week.

Since same-sex partners cannot legally marry, and transsexuals cannot marry someone of their own birth sex, both groups are excluded by rules that reserve survivors’ pensions for married partners.

The court ordered anonymity for the nurse, who sat at the back of the courtroom without her partner.  The pair, both in their 40s, live in the west country.  They went through an adapted Church of England marriage ceremony conducted by a minister with the approval of a bishop who knew of their case.

Laura Cox QC, representing the nurse, told Lords Justices Aldous, Brooke and Sedley that the case had been referred to them by the employment appeal tribunal because of the “fundamental human rights” elements.  “This court must rule on the extent to which the respondent [Alan Milburn, the health secretary] violates European convention rights.”

The Human Rights Act, which came into force on Monday, incorporates the European convention on human rights into English law, making it enforceable in the English courts.

Ms Cox said her client, a nurse and care manager for 20 years, was backed by the pressure group Justice and the equal opportunities commission, which believed the refusal to allow her partner a survivor’s pension was direct discrimination.

The employment appeal tribunal had held that they were barred from ruling in the nurse’s favour by an earlier judgment denying travel benefits to the same sex partner of a railway worker.

Like same-sex partners, the nurse and her partner are unable to overcome their problem by marrying.  The government is considering a change in the law, but at present legal sex is fixed at birth and the nurse’s partner is considered legally female.

Ms Cox said the partner “lives as a man, presents as a man and to all intents and purposes the couple present to the world as man and wife”.

She said 5,000 people in the UK were recognised as transsexuals, a recognised medical condition called gender dysphoria which can be treated by altering the body with drugs and operations.

He had gone through a “lengthy and painful process of treatment and operations” to be able to live in his true gender identity.  The pair were not same sex partners but a man and woman in a heterosexual relationship.

“The European court of human rights has expressly acknowledged how serious are the problems caused to transsexuals by the continued refusal of the UK government to allow them to amend their birth certificates, to acknowledge their true gender and permit them to get married,” Ms Cox said.

Lord Justice Aldous commented during the case: “In reality this person is a man.”

The case will come back to the appeal court once the Luxembourg court has ruled on the questions of European law.

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