## Facts

- K.B., a nurse, was a member of the United Kingdom National Health Service (NHS) occupational pension scheme.
- K.B. lived in a long-term relationship with R., a transgender man who had undergone gender reassignment surgery.
- The NHS scheme provided survivor’s benefits only to a “spouse.”
- At the time, U.K. law treated as void a marriage unless the parties were respectively male and female as assigned at birth, and it did not fully recognize a trans person’s acquired gender for marriage purposes.
- Because K.B. and R. could not marry, R. could not qualify as a “surviving spouse” eligible for a survivor’s pension derived from K.B.’s employment benefits.
- K.B. claimed the combined effect of the marriage rules and the pension scheme’s “spouse” requirement unlawfully discriminated on grounds of sex contrary to EU equal pay rules.

## Issues

1. Whether a survivor’s pension under a statutory occupational pension scheme constitutes “pay” subject to Article 141 EC and Directive 75/117.
2. Whether Article 141 EC, in principle, prohibits national rules that prevent a couple from meeting a marriage condition for a survivor’s pension when one partner’s gender identity results from gender reassignment surgery.

## Decision

- The ECJ held that a survivor’s pension payable under an occupational pension scheme such as the NHS scheme constitutes “pay” within Article 141 EC.
- The ECJ held that Article 141 EC, in principle, precludes national legislation that, by preventing the couple from satisfying a marriage requirement needed to access a survivor’s pension, produces treatment incompatible with the equal pay principle.
- The ECJ left it to the national court to determine, on the facts and under national procedural rules, whether R. could rely on Article 141 EC to obtain recognition of the right to be nominated as beneficiary of a survivor’s pension.

## Legal Principles

- Employment-related pensions, including survivor’s pensions under an occupational scheme, may constitute “pay” for EU equal pay purposes when they derive from the employment relationship.
- Member States retain authority over marriage and legal recognition of gender reassignment, but exercising that authority must comply with EU law when it conditions access to “pay.”
- Where entitlement to an element of pay depends on marital status, national rules that make marriage impossible for certain couples due to gender reassignment-related legal barriers may, in principle, violate the EU equal pay requirement.
- In preliminary reference proceedings, the ECJ states the governing EU-law interpretation, while the national court determines application and consequences in the конкрет dispute.

## Conclusion

The ECJ treated the survivor’s pension as “pay” and concluded that EU equal pay law can be breached when the combined effect of marriage rules and pension eligibility requirements prevents a worker’s trans partner from qualifying as a spouse for survivor’s benefits, leaving the final application and remedy to the national court.


K.B. v. Nat’l Health Serv. Pensions Agency, Case C-117/01, 2004 E.C.R. I-541 (ECJ 2004)