The issue in this appeal was whether MB (the appellant), a post-operative male-to-female transsexual, was entitled to a state pension from the age of 60 as a result of the Equal Treatment Directive.
On 31 May 2008, MB turned 60. In July of that year, she applied for a state pension, backdated to her 60th birthday. On 2nd September 2008 the Secretary of State for Work and Pensions (the respondent) refused the MB’s state pension claim for the period from the day after her 60th birthday until her 65th birthday. This was on the basis that the appellant did not hold a full gender recognition certificate (GRC) and therefore could not be recognised as a woman for the purposes of state pension entitlement. In other words, her entitlement was assessed as if she remained a man.
Under the terms of the Gender Recognition Act 2004 which applied at the time, MB was unable to obtain a GRC on the basis that she remained married to a woman. She therefore challenged the compatibility with the Equal Treatment Directive of that approach.
The First-tier Tribunal, Upper Tribunal and Court of Appeal all agreed with the respondent. MB appealed to the Supreme Court (SC).
The Equal Treatment Directive provides that there shall be “no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status”. However, Member States are entitled to include in national law a provision excluding from the scope of the Directive the level of pensionable age for the purpose of granting state old age and retirement benefits. The United Kingdom has exercised that right.
Under UK law, a woman born before 6 April 1950 is eligible for the statement pension at the age of 60, and a man born before 6 December 1953 is eligible at the age of 65. For people born after those dates, the ages will converge over a period of time. At the time relevant to this appeal, the acquired gender of a married transsexual person was not recognised for the purpose of determining their qualifying pension age.
Before 2005, the position under UK law was that a person’s legal status was dictated by their gender at birth. In 2002, the European Court of Human Rights deemed that position incompatible European human rights legislation (that is, the right to a private and family life and, in so far as it prevented a transsexual person from marrying a person of the same gender, incompatible with the right to marry and found a family).
The Gender Recognition Act 2004 (which came into force on 4 April 2005) amended the situation so that a person’s acquired gender would be legally recognised if they satisfied certain criteria. If a full GRC was issued to the individual, their entitlement to a state pension would be decided according to the rules that applied to the acquired gender. If, however, a person was married, because same-sex marriages were not at that time recognised, they received only an interim GRC which did not change their legally recognised gender but, first, entitled them to have their marriage annulled after which a full GRC would follow. Once the Civil Partnership Act 2004 came into force in December 2005, a married person who changed their gender could have their marriage annulled and subsequently enter a civil partnership with their former spouse.
In 2014, that situation was changed by the implementation of the Marriage (Same Sex Couples) Act 2013. The Gender Recognition Act 2004 was amended so that a full GRC could, from then on, be issued to a married applicant with the consent of the applicant’s spouse.
So far as MB was concerned, she was registered at birth as a man but had lived as a woman since 1991 and underwent gender reassignment surgery in 1995. She had not applied for a full GRC because she and her wife were married and wished to remain so. At the relevant time, this meant the conditions for obtaining a full GRC were not satisfied.
The SC was divided on the issue and, since there was no European authority directly on the point, referred the question to the ECJ.
Reasons for referral to ECJ
The question referred to the ECJ was whether the Directive prevents a Member State imposing a national legal requirement that, in addition to satisfying the physical, social and psychological criteria for recognising a change of gender, the individual must also be unmarried in order to qualify for a state pension.
MB argued that the ECJ had recognised that the Directive prohibits discrimination between persons of a particular birth gender and people who have acquired that gender. Although it was for Member States to determine the conditions by which someone may acquire a gender, that only applies to physical or psychological characteristics and not to marital status. The UK’s imposition of a marital status condition on a person who satisfies the state’s physical and psychological criteria must therefore be unlawful, and cannot appropriately affect eligibility for a state pension. MB therefore argued that the Gender Recognition Act 2004 discriminated against her directly on the grounds of sex, and indirectly because the great majority of people who have undergone gender reassignment have been reassigned from male to female.
The respondent argued that the UK criterion of requiring a GRC to be obtained in order for a change of gender to be officially recognised was lawful. There was no reason that the conditions for the acquisition of a gender should be limited to satisfaction of physical and psychological criteria. Conditions could properly reflect social factors such as the status of marriage, which may include a definition of marriage as between a man and a woman. The respondent argued that no question of indirect discrimination arose.
While this is an unfortunate situation for MB and other male-to-female transsexuals in a similar position, it is inevitable that there will be winners and losers when the law develops over time to reflect social changes. Presumably, there are female-to-male transsexuals who will have benefitted from the changes and who will receive their state pension on the basis of their female birth gender at age 60.
MB will no doubt hope that the ECJ determines the reference one way or another before the UK leaves the EU, given current uncertainty about the extent to which ECJ decisions will apply after a “Brexit” takes effect. Opinions differ, but the general view appears to be that ECJ decisions handed down before the formal exit date will be binding on UK courts in relation to the past, but will only have persuasive force for the future. In addition, after exiting the EU, UK courts will presumably no longer wish (or need) to refer matters to the ECJ, and EU Directives will apply only to the extent they are already incorporated into UK legislation. Questions as to whether Directives have direct or indirect effect will also be a thing of the past as far as the UK is concerned.