The Supreme Court refers case of transgender woman refused female state pension to the Court of Justice of the European Union.

Supreme Court: Lady Hale DP, Lord Wilson, Lord Sumption, Lord Toulson and Lord Hodge SCJJ: 10 August 2016

In 1948, the appellant, MB, was born and registered at birth as a man. In 1974, MB married a woman. In 1991, MB began to live as a woman and in 1995, underwent a sex-reassignment surgery.

In accordance with the Gender Recognition Act 2004 (the 2004 act), MB did not apply for a gender recognition certificate (where a full gender recognition certificate was issued, the applicant’s new gender (acquired gender) thereafter became the person’s gender for all purposes). That was because the married couple continued to live together and wished to remain married for religious reasons, even if their marriage could have been replaced by a civil partnership (at the time the 2004 act was passed, a valid marriage could only subsist in law between a man and a woman).

In 2008, MB attained the age of 60 and applied for a state retirement pension on the footing that she was a woman (under English law, a woman born before 6 April 1950 became eligible for the state retirement pension at the age of 60 and a man born before 6 December 1953 became eligible at the age of 65). The respondent secretary of state rejected that application on the ground that, in the absence of a full gender recognition certificate, MB could not be treated as a woman for the purposes of determining her pensionable age.

That decision was subsequently upheld by the First-tier Tribunal (Social Entitlement Chamber), the Upper Tribunal (Administrative Appeal Chamber) ([2013] UKUT 290 (ACC)) and the Court of Appeal, Civil Division ([2015] 1 All ER 920). MB appealed to the Supreme Court (the court).

Amongst other things, MB submitted that the Court of Justice of the European Union had already recognised that the prohibition in article 4(1) of Council Directive (EEC) 79/7 of discrimination on grounds of sex, extended to discrimination between persons of a given birth gender and persons who had acquired the same gender by later reassignment.

Further, MB accepted that, in principle, it was for member states to determine by their domestic law the conditions on which a person’s change of gender might be legally recognised. However, MB contended that the power to impose conditions was confined to conditions relating to the objective physical or psychological characteristics which determined whether an applicant was a man or a woman. It could not be used to impose conditions relating to such matters as marital status, which had nothing to do with the determination of an applicant’s gender (see sections 4(3) and 5(1) of the 2004 act, and sections 11(c), 12(g) and 13(2A) of the Matrimonial Causes Act 1973).

Since, a holder of an interim gender recognition certificate had to have satisfied the physical and psychological criteria for gender recognition, the imposition of a further condition for obtaining a full certificate, which applied to married applicants, had only constituted unlawful discrimination. Furthermore, even if it had been legitimate to impose a marriage condition for the purpose of protecting the status of marriage as a relationship between a man and a woman, that could not have justified imposing on eligibility for a state retirement pension, to which marital status was likewise irrelevant.

The court ruled: The court was divided on the issue and, in the absence of Court of Justice of the European Union authority directly in point, considered it could not resolve the appeal without a reference to the Court of Justice (see [17] of the judgment).

Accordingly, the question to be referred was whether the Directive precluded the imposition in national law of a requirement that, in addition to satisfying the physical, social and psychological criteria for recognising a change of gender, a person who had changed gender had to also be unmarried in order to qualify for a state retirement pension (see [18] of the judgment).

Per curiam: ‘The [Marriage (Same Sex Couples) Act 2013] does not apply retrospectively and does not affect the present appeal’ (at [11] of the judgment).

Lord Pannick QC, Kerry Bretherton QC and Christopher Stothers (instructed by Arnold & Porter (UK) LLP) for MB; Jason Coppel QC and Ben Lask (instructed by the Government Legal Department) for the secretary of state.