Case Comment: MB v Secretary of State for Work and Pensions  UKSC 53
01 Thursday Sep 2016
On 10 August 2016, the Supreme Court gave its ruling in an appeal that required it to consider the operation of Council Directive 97/7/EEC on the Progressive Implementation of the Principle of Equal Treatment for Men and Women in Matters of Social Security, where a transgender woman’s entitlement to a state retirement pension was concerned.
The appellant was born in 1948, and was registered as a man at birth. She later married, but began to live as a woman in 1991, and underwent gender reassignment surgery in 1995. She was not, however, entitled to a full gender recognition certificate under the Gender Recognition Act, as she remained married to her wife. For religious reasons, they were unwilling to have their marriage annulled.
The appellant applied for a state retirement pension in 2008 when she turned 60, which was the pensionable age for woman. Her application was rejected as she could not be treated as a woman for the purposes of pension eligibility, because she did not possess a gender recognition certificate.
Council Directive 97/7/EEC on the Progressive Implementation of the Principle of Equal Treatment for Men and Women in Matters of Social Security
The Directive in question was concerned with state benefits, and stipulated, in art 4, that there could be “no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status.” However, the United Kingdom had opted to exclude the determination of pensionable age from the scope of the Directive, as was permitted by art 7.1(a).
The position in domestic law
UK law provides that a woman born prior to 6 April 1950 would become eligible for a pension at the age of 60, whereas a man born prior to 6 December 1953 would become eligible when he turned 65. At the time the appellant was denied a state pension, her acquired gender could not be considered for pension purposes, as her marital status prevented her from obtaining a full gender recognition certificate.
Gender reassignment recognition
Prior to the ruling of the European Court of Human Rights in Goodwin v United Kingdom, the law in the United Kingdom made no provision for gender reassignment recognition. This ruling determined that a failure to recognise acquired gender, and to allow individuals to enter into a valid marriage with a person of the same birth gender, was contrary to ECHR, arts 8 and 12. It led to the introduction of the Gender Recognition Act 2004, which made provision for recognition of acquired genders.
Sch 5, para 7 of the 2004 Act stipulated that the question of state retirement pension eligibility was to be determined as if the person’s acquired gender had always been their gender. However, this applied only where the individual was in possession of a full gender recognition certificate. Those who were married were only entitled to interim gender recognition certificates, under s 4(2) of the Act. This did not alter the individual’s legally recognised gender, and merely permitted the individual to make an application within 6 months to annul their marriage.
The Marriage (Same Sex Couples) Act 2013 led to the amendment of the Gender Recognition Act, permitting a married applicant to receive a full gender recognition certificate, provided their spouse agreed. However, as this does not have retrospective effect, it was not relevant to the appeal.
The appellant argued that the Court of Justice (CJEU) decision in Richards v Secretary of State for Work and Pensions (C-423/04) demonstrated that the art 4 prohibition on gender discrimination extended to those who had acquired gender by later reassignment. She accepted that individual member states could determine when a gender change was to be recognised, but that this had to be based on conditions relating to objective physical or psychological characteristics, rather than being contingent on marital status, which was immaterial to the individual’s gender. She asserted that imposing a marital status condition amounted to unlawful discrimination, where the physical and psychological requirements had been met.
While the appellant accepted that it could be argued that the marital status requirement could have been justified at the time as legitimate for the purpose of protecting the relationship between a man and woman, this argument could not be applied to justify discrimination where state retirement pension eligibility was concerned.
The appellant also made an indirect discrimination argument, as evidence existed that the majority of those who had undergone gender reassignment had been reassigned from male to female.
The Secretary of State argued that the United Kingdom had been entitled to make gender reassignment recognition dependent on a certification process. There was no reason why the status of marriage could not be included, and this area of social consideration was outside the parameters of EU law. The judgment in Goodwin had acknowledged at para 103 that invalidating past marriages could be a precondition for gender recognition, and the Secretary of State suggested that this was implicitly accepted by the CJEU in its own case law.
The Secretary of State asserted that states could have a legitimate interest in maintaining the traditional concept of marriage being between a man and a woman, and that the availability of a civil partnership meant that it was not disproportionate to require past marriages to be annulled as a precondition to full recognition.
Any suggestion that indirect discrimination arose was also rejected.
The Supreme Court’s decision
The Supreme Court concluded that without direct authority from the CJEU on this point, it was necessary to make a reference to resolve the appeal. It has asked the CJEU to determine whether the Directive at issue “precludes 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 has changed gender must also be unmarried in order to qualify for a state retirement pension.”
This decision may be of interest to those concerned with the interaction between the CJEU and the highest courts in member states. The Supreme Court has decided to utilise the preliminary ruling procedure provided for by art 267 of the Treaty of the Functioning of the European Union, but Lord Sumption’s judgment offers no insight into what the Supreme Court Justices view the correct interpretation of the Directive to be, simply stating that the court was divided on the question. Those who advocate for enhanced judicial dialogue between domestic courts and the CJEU may argue that it would have been useful if the Supreme Court had presented its observations on the question it has posed. It also passed no comment on the judgment of the Court of Appeal, which clearly formed the view that this was not a matter where EU law was ambiguous.
The judgment given by the CJEU will essentially determine the appeal. If it finds that the Directive prohibits national law from including marital status as a criterion for state retirement pension eligibility where transgender individuals are concerned, then the appellant will win her case, and all member states will be required to ensure that their requirements for gender recognition do not discriminate on grounds of marital status, where the Directive is concerned.
The issue raised by the appeal is certainly a complicated one, emanating from a period in the recent history of Great Britain where gender reassignment recognition became a reality, but where same-sex marriages continued to be prohibited. It is perhaps worth noting that such marriages are still not recognised in Northern Ireland.
It does appear harsh that the appellant, who for all intents and purposes lived her life as a woman, was denied a social benefit that her assumed gender ought to have entitled her to. While it is understandable that the prohibition on same-sex marriage would have caused issues for the authorities, where previously married individuals sought gender reassignment, it is problematic that this impeded an individual from having an essential aspect of their identity recognised. Requiring transgender individuals to choose between having their gender or their marital status legally recognised must have been distressing for those involved.
Where individuals, such as the appellant, chose to have their marriages recognised by the state, ought there to have been some mechanism in place whereby they could have enjoyed certain entitlements that their assumed gender would have afforded them? Given that EU law explicitly states that there can be no discrimination on grounds of marital status when it comes to pension payments, this could surely have been an area where it was open to the Secretary of State to make arrangements for individuals like the appellant to enjoy such benefits.