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Court of Justice finds UK transgender state pension law discriminatory

Date:10 JUL 2018
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Pensions analysis: A ruling by the Court of Justice of the European Union in MB v Secretary of State for Work and Pensions Case C-451/16 [2018] All ER (D) 135 (Jun) that EU law precludes UK legislation which requires a woman who had previously been a married man to be no longer married to a woman in order to be able to claim a state retirement pension as from the statutory pensionable age applicable to women is examined by Dr Christopher Stothers, a partner at Freshfields Bruckhaus Deringer. This case has significant implications on how countries recognise changes to gender.

What are the practical implications of the judgment?

The UK cannot require women who were born male to end their marriages to their wives before they will be entitled to a state pension.

Same-sex marriage is now permitted in England and Wales since the Marriage (Same Sex Couples) Act 2013 (MSSCA 2013) came into force, and in Scotland following the Marriage and Civil Partnership (Scotland) Act 2014. Nevertheless, this case has important implications not only for those affected historically but also in Northern Ireland (where same-sex marriage is not permitted) and, more broadly, on the way in which countries are required to recognise change of gender.
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What was the background?

The claimant in the main proceedings had been born a man in 1948 and in due course got married. After undergoing gender reassignment surgery in 1995, she and her wife wished to remain married. When the Gender Recognition Act 2004 (GRA 2004) came into force in 2005, a transgender person could obtain a gender recognition certificate. This, however, would have required the claimant to have divorced or annulled her marriage under GRA 2004 – mirroring s 11(c) of the Matrimonial Causes Act 1973 which provided that a valid marriage could legally exist only between a male and a female. It was not until GRA 2004 was amended following the introduction of same-sex marriage that she would have been eligible for the certificate without divorce or annulment.

In the meantime, the claimant had applied for a state pension in 2008 when she turned 60 (then the retirement age for women, with men retiring at 65). The defendant refused her application because she did not have a gender recognition certificate, which it deemed necessary for her to be treated as a woman for the purpose of determining her pensionable age. The defendant’s decision was upheld by the First-tier Tribunal, the Upper Tribunal and the Court of Appeal. The claimant appealed to the Supreme Court, which referred the question to the Court of Justice.

A similar fact pattern was considered by the Court of Appeal in Timbrell v Secretary of State for Work and Pensions [2010] EWCA Civ 701, [2010] All ER (D) 173 (Jun), concerning a case where pensionable age was reached prior to the entry into force of GRA 2004. The Court of Appeal held that it was not necessary to divorce or annul the marriage.

The secretary of state’s position in the current case was that GRA 2004 changed the position such that he could now legitimately require marriages to be terminated before change of gender could be recognised for any purpose, including payment of state pension. This was upheld by the Court of Appeal, but the Supreme Court was divided and referred the question to the Court of Justice, which assigned it to the Grand Chamber (15 judges rather than a more usual smaller chamber).

What did the Court of Justice decide?

The court held that the UK’s approach constituted direct discrimination. Those born a woman did not have to end their marriage to be paid a state pension from 60, while those who changed gender did. That was discrimination and the UK was not right to say that the positions were different (and thus there was no discrimination) because in the latter case the state would have had to have recognised same-sex marriage. Same-sex marriage was unrelated to the purpose of the state pension and did not give rise to a permitted exception under Directive 79/7/EEC, which prohibits discrimination in payment of social security benefits, including pensions.

The issue now returns to the Supreme Court to apply the Court of Justice's preliminary ruling to the facts of the case, and will also return to other tribunals where cases have been stayed pending the outcome of this case.

Dr Stothers appeared with Lord Pannick QC and Kerry Bretherton QC for the claimant in this case, instructed by the law firms Arnold & Porter and Freshfields Bruckhaus Deringer, all on a pro bono basis.

Interviewed by Robert Matthews.

This analysis was originally published on LexisPSL Family (subscription required). Click here to request a free 1-week trial