New Judgment: MB v Secretary of State for Work & Pensions  UKSC 53
10 Wednesday Aug 2016
On appeal from:  EWCA Civ 1112
The Supreme Court made the decision to refer a question to the Court of Justice of the European Union, in a case concerning 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 was concerned.
The appellant underwent gender reassignment surgery in 1995. She was not, however, entitled to a full gender recognition certificate, as she remained married to her wife. The appellant applied for a state retirement pension in 2005 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.
Article 4 of the EU Directive on equality in social security law prohibited discrimination on ground of sex either directly or indirectly, particularly with reference to marital or family status. However, Article 7(a) allowed member states to exclude the pensionable age from the scope of the Directive. The UK had exercised this right.
The appellant argued that the Secretary of State’s refusal of her application was incompatible with the Directive in question, though the First-tier Tribunal, the Upper Tribunal and the Court of Appeal all rejected this argument. She submitted that where she met the physical and psychological conditions set out by the state, a marital status criterion could not be imposed. She asserted that the Gender Recognition Act 2004 discriminated against her directly on grounds of sex and indirectly, because a majority of those undergoing gender reassignment were male to female transgender individuals.
Lord Sumption gave the reasons for the referral to the Court of Justice, with which the rest of the Justices agreed. The Court was divided on the correct answer, and the absence of Court of Justice authority on the point led it to refer the question for guidance.
The question to be referred is whether the Directive precluded the imposition in national law of a requirement that a person must also be unmarried in order to qualify for a state pension, where a gender change occurred.
The Supreme Court noted that the requirement that a marriage be annulled was because same-sex marriages were not recognised before 2014, when the Marriage (Same Sex Couples) Act 2013 came into force. This led to an amendment to the 2004 Act, permitting the issuing of a full gender recognition certificate to a married person, where the spouse consented.