MB, registered male at birth, had lived as a woman and undergone gender reassignment surgery, but remained married. She was refused a state retirement pension at 60 because, without ending that marriage, she could not obtain a full gender recognition certificate and was still treated as a man for pensionable age. The Supreme Court was divided on whether that marriage condition breached EU equal-treatment rules and referred the question to the Court of Justice without finally deciding the appeal.
The pension claim
Council Directive 79/7/EEC concerns equal treatment of men and women in state social security, including old-age and retirement pensions. Article 4 prohibits discrimination on grounds of sex, whether direct or indirect, including by reference to marital or family status. Lord Sumption recorded that the material provisions have direct effect. Member states may nevertheless exclude the setting of pensionable age from the Directive, and the United Kingdom had done so. A woman born before 6 April 1950 became eligible for a Category A retirement pension at 60, while a man born before 6 December 1953 became eligible at 65. Later convergence of those ages did not affect this appeal.
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MB had transitioned while married and wished to remain married. At the time relevant to the claim, obtaining a full gender recognition certificate would have required the marriage to end.
She applied for a state pension at the pensionable age applicable to a woman of her generation. Her application was refused, and the domestic appeals raised the question of EU equal-treatment law.
Why marriage blocked recognition
Until 2005, United Kingdom law made no provision for gender reassignment. A person was treated as having the gender fixed by biological criteria at birth. In Goodwin v United Kingdom, the European Court of Human Rights held that this was incompatible with article 8 of the European Convention on Human Rights and, because it prevented a transsexual person from marrying someone of the same birth gender, with article 12.
The Gender Recognition Act 2004, in force from 4 April 2005, allowed an application for a certificate recording a change from birth gender to an acquired gender. The Panel had to grant it where the applicant had or had had gender dysphoria, had lived in the acquired gender for at least two years, intended to do so until death, and supplied the required medical evidence. A full certificate made the acquired gender the person’s gender for all purposes. Pension entitlement was then decided as if that gender had always been the person’s gender. A person who had been a man immediately before the certificate, but had already reached a woman’s pensionable age, was treated as reaching pensionable age when the certificate was issued.
A valid marriage could then subsist only between a man and a woman. The Act therefore treated married and unmarried applicants differently even where both met the gender criteria. An unmarried applicant received a full certificate. A married applicant received only an interim certificate, which did not itself change legal gender. It made the marriage voidable. If proceedings were brought within six months, the court was bound to grant a decree of nullity, subject to other conditions which Lord Sumption said were irrelevant here. Only then was a full certificate issued. After the Civil Partnership Act 2004, the former spouses could register a civil partnership. The Marriage (Same Sex Couples) Act 2013 later required a full certificate for a married applicant whose spouse consented, but it was not retrospective and did not affect this appeal.
The arguments left unresolved
Lord Sumption, with whom Lady Hale, Lord Wilson, Lord Toulson and Lord Hodge agreed, set out the arguments without adopting either side.
MB argued that EU law already treats less favourable treatment of a person who has acquired a gender, as against someone of that birth gender, as sex discrimination. She accepted that member states may set conditions for recognising a change of gender, but said those conditions must concern the physical or psychological characteristics used to determine sex, not marital status. An interim certificate already showed that the relevant criteria were met, so the further marriage condition was said to discriminate directly. Even if it protected the then legal status of marriage, she argued that it could not justify the same condition for a pension, to which marital status was irrelevant. She also contended that the legislation discriminated indirectly because, on her case, the great majority of people who had undergone reassignment had moved from male to female, and that this could not be justified.
The Secretary of State argued that earlier authority concerned the previous absence of any recognition scheme, which the 2004 Act had filled. A person was not legally a woman merely by having the qualifying characteristics: a full certificate had to be issued. The conditions for that certificate could, it was said, reflect legitimate social consequences such as marriage, including conditions under which past marriages cease to be valid. The Secretary of State relied on later European Court of Human Rights decisions upholding the marriage condition and a similar Finnish rule, on the basis that states were not required to permit same-sex marriage, that a civil partnership was available, and that the condition was not disproportionate. It was also argued that there was no indirect discrimination, because obtaining a full certificate was no more difficult for a male-to-female transsexual than for a female-to-male transsexual.
The need for a reference
The Supreme Court was divided on the substantive question. In the absence of Court of Justice authority directly in point, it considered that it could not finally resolve the appeal and referred the compatibility of the unmarried requirement to that Court.
Verdict: The Supreme Court referred the question to the Court of Justice. It asked whether Directive 79/7 permitted a state to require that a person who had changed gender also be unmarried to qualify for a pension. This judgment did not decide entitlement or award a pension.
Source: MB v Secretary of State for Work and Pensions [2016] UKSC 53
