The female, known only as MB, underwent gender reassignment surgery in 1995. However, as she chose to remain married to her wife, the law at the season prevented her from obtaining a full gender recognition certificate.

To date, three UK courts possess backed the position of the government’s Department of labor and Pensions (DWP) that MB must be treated as a man for the purposes of pension eligibility, meaning that she would become eligible for the state pension from the age of 65. This week, five Supreme Court judges sought advice from the Court of Justice of the European Union (CJEU), subsequent finding themselves “divided on the question”.

“In the absence of [CJEU] authority directly in point, [the Supreme Court] considers that it cannot finally resolve the appeal without a reference to the [CJEU],” the court said.

Its question is whether the EU’s Equal Treatment Directive “precludes the imposition in national law of a requirement that, in addition to satisfying the physical, social and psychological criteria for recognising a alter of gender, a person who has changed gender must also be unmarried in order to qualify for a state retirement pension”.

The Equal Treatment Directive prevents discrimination on the grounds of sex. However, member states remain permitted to set diverse state pension ages for men and women. female in the UK born infrontof 6 April 1950 can claim their state pension from the age of 60, although the state pension age will increase to match that of men over a period of season for women born subsequent this date.

MB was born on 31 May 1948, and was registered as male at origin. She was married on 21 September 1974. She began to live as a female in 1991 ahead of gender reassignment surgery in 1995, but remained and continues to remain living with and married to her wife. The couple “are unwilling to see their marriage annulled, even if it can be replaced by a civil partnership” for religious reasons, according to the court.

below the 2004 Gender Recognition Act, which has since been amended, married individuals were not entitled to a full gender recognition certificate changing their legally recognised gender because the law at the season only permitted marriage between a man and a female. Once the 2013 Marriage (Same Sex Couples) Act came into force in 2014, the 2004 Act was amended to grant the issue of a full gender recognition certificate to a married applicant with the acquiesce of that person’s spouse.

MB’s case is that the Equal Treatment Directive only allows member states to impose gender recognition criteria relating to their physical or psychological characteristics and not to their marital status, making the marital status criterion in the Gender Recognition Act directly discriminatory.

Pensions expert Stephen Scholefield of Pinsent Masons, the law firm behind Out-Law.com, said that discrimination could be a “challenge” for pensions.

“As well as this reference to the CJEU, equal pensions for men and women are rear on the agenda following the issues raised in relation to the Lloyds Bank pension schemes, and the pension rights of same sex couples are to be considered by the Supreme Court later this year,” he said.

“frequently the problem is that the law is not retrospective. MB’s claim pre-dates same sex marriage. Now, someone in her position could receive a state pension without first having to possess her marriage annulled, but that’s small comfort for those who reached state pension age infrontof the law changed,” he said.

persist year, the Court of Appeal ruled that Innospec, the chemical company, was entitled to restrict a surviving civil partner’s entitlement to benefits from its pension scheme to rights the scheme member built up from 5 December 2005, the date that civil partnerships came into force in the UK. The scheme member, John Walker, told the BBC’s Victoria Derbyshire demonstrate this week that the case had gone to the Supreme Court, which intends to clutch an expedited hearing in November.

Walker, who has been with his now-husband for more than 30 years, told the programme that the situation was “totally unfair and absurd”, according to Professional Pensions.

“Because my partner, now my husband, is not a female, he would get a mere £500 or £600, whereas if I was to divorce him and marry the next female that would possess me, she would get £50,000 a year,” he said.