Sex and Gender in the European Union

Abstract

The ECJ Judgment (Court of Justice of European Union) of 26 July 2018 (M.B. Case) declares the discriminatory nature of a national (British) regulation that requires married transgender people to have their marriage annulled to gain full legal recognition of their gender change, as a condition for access to a retirement pension established by national law for people who have changed gender. This judgment is made to Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security.

This work analyzes this judicial pronouncement, placing it in the set of the community jurisprudence which dealt with the consequences of the gender change from the community regulations of a socio-laboral nature. It points out the Spanish legal regulation concerning gender change and consequences in terms of social security. The work proves that in many cases wherein, despite the sex-gender differentiation, both terms are used in the same sense. The paper advocates a “de-gendered” and “de-gendering” law indicated by the author in the final epilogue.