Case note

MARK BELL

A HAZY CONCEPT OF EQUALITY

Case C-117/01 K.B. v. N.H.S. Pensions Agency and Secretary of State

for Health, European Court of Justice, 7 January 2004

ABSTRACT. K.B. is a woman working for the United Kingdom National HealthService (NHS) with a transsexual male partner. Her partner’s male gender was not

legally recognised in the United Kingdom and consequently they could not marry.Whilst the NHS pension scheme provides for the payment of a survivor’s pension,this is only in respect of married partners. The European Court of Justice held thatthe combination of circumstances that prevented K.B.’s partner from receiving the

survivor’s pension amounted to sex discrimination in pay contrary to Article 141 ofthe Treaty establishing the European Community. At first sight, this decision ap-pears to represent a strengthening of the concept of gender equality in European

Union law. Yet, the reasoning provided by the Court lacks clarity and coherence.Moreover, the reach of equality is compromised by the Court’s determination toexclude any confrontation with the privileged status of heterosexual marriage.

KEY WORDS: equality, marriage, pensions, sex discrimination, transsexual

INTRODUCTION

It is eight years since the seminal decision of the European Court ofJustice inP. v. S. andCornwallCouncilCouncil,1 inwhich theCourt heldthat to dismiss aworker for a reason related to gender reassignmentwas‘‘essentially, if not exclusively’’ unlawful sexdiscrimination.That rulingappeared to herald a decisive shift in the Court’s case law, away from anarrow focus on discrimination linked to biological sex and towards abroader concept of gender. The latter seemed to encompass a widerrange of discriminatory actions connected to an individual’s genderidentity and, in particular, adverse treatment occasioned by crossinggender boundaries (Sandland, 2003, p. 197). Nonetheless, the pro-mise of P. v. S. was scotched by the Court’s subsequent return to a

1 Case C-13/94 [1996] E.C.R. I-2143.

Feminist Legal Studies 12: 223–231, 2004.� 2004 Kluwer Academic Publishers. Printed in the Netherlands.

‘traditional’ understanding of sex discrimination when it rejected theinclusionofdiscriminationbasedonsexualorientation.2 Indeed,P.v.S.has remained a lonely decision, raising doubts as to whether it repre-sented an isolated departure from the general rule.

The question marks surrounding the significance of P. v. S. wereaccentuated by the revision of the 1976 Equal Treatment Directive in2002 (Masselot, 2004). One of the objectives of the revision was tocodify key elements of the Court’s case law, yet there was no attemptto give legislative recognition to the decision in P. v. S. Against thisbackdrop, K.B. represented an important test of the Court’s will-ingness to continue along the path opened in P. v. S. The Courtpassed this test in so far as it affirmed the earlier case, and, in fact,took a few careful steps further. Nevertheless, the reasons presentedare convoluted, opaque and, in places, inconsistent.

THE ESSENTIAL ELEMENTS OF K.B.

The applicant in K.B. was a woman working for the U.K. NationalHealth Service (N.H.S.) and a member of its pension scheme. Thestatutory regulations governing the scheme provided for payment of asurvivor’s pension in respect of any surviving married partner fol-lowing the death of the principal pension recipient.3 K.B.’s partner,R., had been registered at birth as a woman, but, in the language of theCourt, ‘‘following surgical gender reassignment, has become a man’’(para. 12). Whilst they shared an enduring relationship, the inabilityto alter R.’s birth certificate prevented them from marrying underU.K. law. In an interesting example of anticipatory litigation, K.B.initiated legal proceedings to challenge the potential future denial of asurvivor’s pension to her partner. In particular, she argued that thisconstituted sex discrimination contrary to Article 141 of the Treatyestablishing the European Community (E.C.) on the right to equal payfor women and men. The English Court of Appeal referred the case tothe European Court of Justice, where both the Advocate-General andthe Court agreed that there had been a breach of Article 141 E.C.

2 Case C-249/96 Grant v. South-West Trains [1998] E.C.R. I-621, Cases C-122/99P

and C-125/99P D. and Sweden v. Council [2001] E.C.R. I-4319.3 The regulations apparently only referred to widow or widower, but it was not

contested that this required the couple to have been married (Case C-117/01 K.B. v.N.H.S. Pensions Agency and Secretary of State for Health, European Court of Jus-tice, 7 January 2004, para. 10).

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A NEW DIMENSION TO THE EQUALITY CONCEPT?

The Advocate-General and Court loosely agreed on the underlyingdecision in K.B.’s favour. However, this superficial outcome concealsa great deal of ambiguity and difference in reasoning. The dilemmainherent in the facts of the case lies in the multiple sources of dis-crimination. It is necessary to assemble a number of elements tounderstand completely the context that leads to K.B.’s inequality.First, there is the restriction of the survivor’s pension to marriedpartners. Secondly, there is the restriction of marriage to couples thatthe law recognises as consisting of one ‘male’ and one ‘female’.Thirdly, there is the restriction to the circumstances in which a birthcertificate can be amended (McDonald, 2003, p. 287). Altering any ofthese three elements could be sufficient to remove the barriers toK.B.’s partner receiving the survivor’s pension, yet it is simulta-neously artificial to examine one without acknowledging the roleplayed by the others. Advocate-General Ruiz-Colomer concluded:‘‘although the unequal treatment operates mediately, the discrimi-nation is still direct’’.4 He identified the ‘‘capacity to marry’’ as a‘‘necessary precondition’’ for receiving the survivor’s pension andargued that the direct discrimination flows from this (indirect) source.Yet, this reasoning glosses over the further complicating element;both K.B. and R. in fact retained a capacity to marry, but only iftheir chosen spouse was a person legally treated as being of the‘opposite’ sex.

In contrast, the European Court of Justice rejected a direct dis-crimination analysis, viewing the marriage requirement as a neutralrule that applied to all members of the pension scheme equally (paras.28–29). Yet, the Court did not then shift to an indirect discriminationanalysis. Instead, it referred to the presence of ‘‘inequality of treat-ment which, although it does not directly undermine enjoyment of aright protected by Community law, affects one of the conditions forthe grant of that right’’ (para. 33). The hazy reference to ‘‘inequalityof treatment’’ was complemented (if not clarified) by reference to twoother elements.

First, the Court erected a comparator test between the situation ofK.B. and the situation of another ‘‘heterosexual couple where neitherpartner’s identity is the result of gender reassignment surgery and thecouple are therefore able to marry and, as the case may be, have the

4 Opinion of 10 June 2003, para. 76.

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benefit of a survivor’s pension’’ (para. 31). This seems a ratherawkward and clumsy comparison. Again, there is a need to stepthrough a number of hoops. It is not sufficient to make a comparisonwith any heterosexual couple where neither partner is a transsexualperson, but they must also be a married couple. A number of alter-native comparators also exist, but which result in a different outcome.For example, K.B.’s situation might have been compared with a maleworker whose partner was a transsexual woman. This ‘equal misery’comparison has been the approach consistently adopted both by theCourt of Justice and the U.K. courts in cases of sexual orientationdiscrimination.5 Alternatively, the Court does not appear to con-template that the peculiarities of the U.K. legislation meant that aheterosexual couple where both partners were transsexual personscould in fact marry (McDonald, 2003, p. 284). The difficulty with theCourt’s case law lies in its failure to deliver an adequate explanationfor how it comes to select one comparator and to reject another. Thechoices made appear rather arbitrary and inconsistent, most notablyin the contrast between its handling of transsexual and sexual ori-entation cases. The insistence on locating a comparator reflects theformal equal treatment concept that has dominated the Court’sgender equality case law (Tobler, 2003, p. 73). The Court appearsunwilling to acknowledge the limits to a comparative approach,which tends to frame the individual’s treatment by reference to anormative male heterosexual standard (Fredman, 2002, p. 4). Ratherthan attempting to hammer square pegs into round holes, it would bepreferable if the Court recognised that the comparative approach isnot appropriate to every instance of inequality. In some cases, such asP. v. S. and K.B.,6 it is readily apparent, without a comparator, thatthe applicant has (a) experienced disadvantage, and (b) that thedisadvantage is linked to being a transsexual person.

The second dimension to the ‘‘inequality of treatment’’ highlightedby the Court crosses into a human rights perspective. In the inter-vening period between the reference from the English Court of Ap-peal and the final decision from the Court of Justice, the EuropeanCourt of Human Rights held that the inability to amend the birthcertificate of a transsexual person, and the consequent bar to mar-riage, breached Convention Articles 8 (private life) and 12 (right to

5 Grant, supra, n. 2; Pearce v. Governing Body of Mayfield Secondary School [2003]

I.R.L.R. 512.6 See also Croft v. Royal Mail Group plc [2003] I.R.L.R. 592.

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marry) respectively.7 By the date of the decision in K.B., the U.K.government had not yet brought its legislation into line with thisruling. Nonetheless, the Gender Recognition Bill was already beforeParliament and this aims to provide a mechanism for legal recogni-tion of the ‘‘acquired gender’’, hence permitting (heterosexual) mar-riage (McDonald, 2003, p. 281). Unsurprisingly, the Court of Justiceplaces great emphasis on the fact that the barriers to marriage forK.B. and R. were already in breach of the European Convention onHuman Rights (ECHR) (paras. 33–36). Nevertheless, the Court’sreasoning lacks precision. The Court starts from the premise thatArticle 141 E.C. must be interpreted in conformity with the E.C.H.R.Indeed, the close relationship between the Convention and EuropeanUnion (E.U.) law now seems so well established that the Court omitsany explanation of this interaction or even a reference to its earliercase law on this point. The reader is left to surmise that (1) therelevant U.K. legislation falls within the ambit of Article 141 E.C.; (2)it must respect fundamental rights as defined by E.U. law; (3) the caselaw from the Court of Human Rights should be transposed directlyinto the E.U. legal system. These assumptions are not unproblematic.In particular, to construe the U.K. legislation on birth registry andmarriage as implementing Article 141 E.C. seems to stretch consid-erably the sphere of E.U. law.

The overall impression emerging from this very brief judgement isthat the Court of Justice found its path cleared by the earlier ruling ofthe Court of Human Rights. It floats issues relating to equality andhuman rights, but fails to articulate exactly how these lead to itsdecision and the inter-relationship between these two elements. Thevague reasoning seems an opportunity missed to present a moresubstantive concept of equality and/or to define more rigorously thescope of human rights protection flowing from E.U. law. Unfortu-nately, the ambivalence does not end in the judicial explanations; itextends also to the outcome and consequences of the ruling.

THE NON-DECISIONS OF THE COURT

The Advocate-General concluded that a number of avenues lay opento the English Court of Appeal in order to achieve the required result.It could reinterpret the existing law on marriage with general appli-cation; it could exceptionally allow K.B. and R. to be treated as

7 Goodwin v. U.K. (Application no. 28957/95) (2002) 35 E.H.R.R. 18.

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married; or it could permit such couples to have access to survivors’pensions even in the absence of marriage (para. 78). In contrast, theCourt of Justice initially appears to opt for a more radical course ofaction:

Article 141 EC, in principle, precludes legislation, such as that at issue before thenational court, which, in breach of the ECHR, prevents a couple such as K.B. and R.from fulfilling the marriage requirement which must be met for one of them to beable to benefit from part of the pay of the other (para, 36).

This reduces the menu to just two options: either to allowamendment of birth certificate details or to open marriage to couplestreated by the law as being of the same sex. At this point, however,the Court introduces an element of doubt by declaring that ‘‘it is forthe Member States to determine the conditions under which legalrecognition is given to the change of gender of a person in R.’s sit-uation – as the European Court of Human Rights has accepted’’(para. 35). In essence, this delegates to the national court the factualdetermination of whether R. is to be treated as deserving genderrecognition.

A number of remarks can be made here. First, the focus on genderrecognition reveals that the Court intended the impact of its judge-ment to be on the legislation governing amendment of birth certifi-cates, not a shift in the criteria for marriage. In this sense, the Courtavoids any destabilisation of the heterosexual marriage norm. Therules on access to marriage remain intact. The Court of Justice alsofollows the Court of Human Rights in shying away from any specificguidance on when gender recognition is to be granted. For the Courtof Human Rights, this reflected the margin of appreciation granted toContracting States, which is a central thread in the application of theE.C.H.R.8 In contrast, the margin of appreciation doctrine is not anexplicit principle in E.U. law, although the judgments of the Court ofJustice provide a varying degree of discretion for national courts inthe application of the law to the facts.

Most of the cases that have confronted both the Court of HumanRights and the Court of Justice have concerned ‘post-operative’transsexual people. This categorisation in itself conceals a range ofdifferent situations, in addition to which it is important to recognise

8 Goodwin v. U.K., supra n. 7, para. 103.

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the variety of other circumstances that may arise. For example, someindividuals may not be able to access surgical intervention, or maychoose not to proceed along this route (Sandland, 2003, p. 202). Thisdiversity is increasingly recognised by the shift in language fromtranssexual to transgender. The Court of Justice places the determi-nation of gender boundaries into the hands of national courts, al-though the English courts have demonstrated a marked reluctance todepart from a strictly biological conception of male and female.9

Moreover, the emphasis on determining whether an individual is tobe categorised as man or woman illustrates a reticence to engage withthe ‘‘unclear boundaries’’ that arise for persons whose situation defiesa straightforward insertion into traditional gender categories (Co-wan, 2004).

A STING IN THE TAIL?

If any doubt remained concerning the Court’s desire to avoid dis-turbing the status quo on marriage, it is dispelled by a brief, yetcrucial aside remark:

The decision to restrict certain benefits to married couples while excluding all persons

who live together without being married is either a matter for the legislature to decideor a matter for the national courts as to the interpretation of domestic legal rules,and individuals cannot claim that there is discrimination on grounds of sex, pro-

hibited by Community law (para. 28).

As a statement of doctrinal law, this proposition may be con-tested. The Court appears to exclude, a priori, any challenges tomarital benefits based on a sex discrimination argument. Yet, there isno European Treaty-based or legislative exception that provides suchimmunity from judicial scrutiny for marriage. Had the Courtrecognised that the marriage precondition was, at least, a form ofindirect discrimination against couples such as K.B. and R., then itwould have been required to scrutinise the legitimate aim served byrestricting survivor’s pensions to married couples and the propor-tionality of this objective. The Court is clearly uncomfortable at theprospect of shining a spotlight on the rationale underpinning suchpractices and from the outset it shifts the focus of analysis towardsthe restrictions on gender recognition in the U.K.

9 Bellinger v. Bellinger [2003] 2 All E.R. 593.

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The statement quoted above also acts as a rhetorical device, pro-viding a determined affirmation of the legitimacy of privileging heter-osexual marriage over other forms of family.10 It pre-empts anysuggestion that the Court’s decision in K.B. will call into question thepractice of granting additional remuneration to those who aremarried.In this respect, the judgement fits with previous case law where theCourt has firmly rejected the possibility of assimilating marriage toother forms of stable partnership.11 The importance of this judicialdeclaration on the apparent inviolability of marital privileges relates tothe prospect forK.B.-type litigation from same sex couples. Like K.B.,a same sex couple will normally be prevented by law from having theirpartnership recognised as amarriage.12 Same sex couplesmight seek tochallenge employment benefits limited to married couples as a form ofsexual orientation discrimination contrary to the Framework Direc-tive.13 In the statement quoted above, the Court only referred to‘‘discrimination on the grounds of sex’’, therefore arguments relatingto sexual orientation discrimination have still to be explored. None-theless, there can be little doubt that the Court is signalling its under-lying hostility to litigious attacks on privileges connected to marriage.

CONCLUSION

Insofar as this case provides further recognition of the right of trans-sexual persons to receive equal treatment in the workplace, many willwelcome its outcome as good for the advancement of gender equalitylaw. Certainly, it assists in reinforcing the earlier decision inP. v. S. Thismay place pressure on the Union’s political institutions to adjust E.U.equal opportunities policy in order to reflect the diversity of issuescovered by the umbrella of gender equality. For example, the Com-mission’s recent proposal for a Directive on sex discrimination in thesupply of goods and services contains no explicit or implicit recognition

10 A similar example of such an approach is the U.K. government’s recent con-sultation on civil partnerships, which commences with a forthright rejection of same-sex marriage (Women and Equality Unit, 2003, para. 1.3).

11 Grant v. South West Trains, para. 35, supra n. 2; D. and Sweden v. Council, para.37, supra n. 2; Case 59/85 Netherlands v. Reed [1986] E.C.R. 1283, paras. 10–11.

12 The exceptions in the European Union are the Netherlands and Belgium wheresame sex marriage is permitted.

13 Directive 2000/78/E.C. of 27 November 2000 establishing a general frameworkfor equal treatment in employment and occupation, [2000] O.J. L303/16. However,see Recital 22.

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of the impact that this Directive could have on transgender persons(Commission, 2003). At the same time, the justification for interventionby the Union is not assisted by the threadbare reasoning presented bythe Court of Justice. The failure to articulate a coherent legal founda-tion for its decision confirms the constraints imposed by the existingconcepts of equality and human rights adopted by the Court. A greaterwillingness to depart from the endless search for an appropriate com-parator could yield a more substantive and flexible concept of equality.

ACKNOWLEDGEMENTS

This case note was completed during a Jean Monnet Fellowshipprovided by the European University Institute, Florence. I wish alsoto thank Sue Millns for generous help in completing this note.

REFERENCES

Commission, ‘‘Proposal for a Council Directive Implementing the Principle of Equal

Treatment Between Women and Men in the Access to and Supply of Goods andServices’’ COM (2003), 657.

Cowan, S., ‘‘‘That Woman is a Woman!’ The Case of Bellinger v. Bellinger and the

Mysterious (Dis)appearance of Sex’’, Feminist Legal Studies 12/1 (2004), 79–92.Fredman, S., ‘‘The Future of Equality in Britain’’, Equal Opportunities Commission

Working Paper Series No. 5 (Manchester: Equal Opportunities Commission, 2002).

Masselot, A., ‘‘The New Equal Treatment Directive Plus Ca Change …’’, FeministLegal Studies 12/1 (2004), 93–104.

McDonald, I., ‘‘A Long Road Nearing An End? Recognition For Transsexual

People’’, Journal of Social Welfare and Family Law 25/3 (2003), 277–289.Sandland, R., ‘‘Crossing and Not Crossing: Gender, Sexuality and Melancholy in the

European Court of Human Rights, Goodwin v. U.K., I. v. U.K.’’, Feminist LegalStudies 11/2 (2003), 191–209.

Tobler, C., ‘‘Positive Action under the Revised Second Equal Treatment Directive’’,in eds. L’egalite entre les femmes et hommes et la vie professionnelle – le point surles developpements actuels en Europe, Association francaise des femmes juristes &

European Women Lawyers Association (Paris: Dalloz, 2003).Women and Equality Unit, Civil Partnership: A Framework for the Legal Recognition

of Same-Sex Couples (London: Women and Equality Unit, 2003).

Centre for European Law and IntegrationFaculty of LawThe University of LeicesterLeicester LE1 7RH, UKUKE-mail: mb110@le.ac.uk

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