Brussels,
Europe — British transsexuals have won a victory
in the European Union's highest court, which ruled that
the government cannot deny them the right to
marry.
The European Court of
Justice <http://curia.eu.int/>
decision provides a legal spur to parliament, where a
Gender Recognition Bill to permit transsexuals to
marry has stalled in the House of Lords
<http://www.parliament.uk/>.
Its immediate effect is
to give a British court the authority to work around
existing law and provide pension benefits for
transsexuals as though they were married, even before
parliament acts.
An appeals court had
asked for the court's advice on European Community law so
it could rule on a pension case.
In Britain marriage can
only occur between a man and a woman. British law has
barred transsexuals from marrying in their new sex
because a birth certificate cannot be amended, the EU
court noted. That has barred pension benefits which are
limited to married couples.
"The (British)
legislation concerned must be regarded as being, in
principle, incompatible with Community law," the EU Court
said on Wednesday.
In the appeals court case
a British nurse, identified as K.B., wanted her pension
paid to her partner, R, who had a sex-change operation to
become a man.
"K.B. wishes R. to have
the rights to the widower's pension," the court
noted.
Although British courts
cannot overturn British laws, with the EU court ruling
they could provide the widower's pension.
The court will have the
authority to decide what constitutes a sex change,
whether R meets that standard and whether R is eligible
for a pension.
Campaigners have been
fighting on behalf of Britain's 5,000 transsexuals for
more than 30 years.
The EU high court said
that in making its decision it took into account a ruling
by the European Court of Human Rights, which held that
"the fact that it is impossible for transsexuals to marry
in their acquired gender constitutes an infringement of
their right to marry..."
