MB v Secretary of State for Work and Pensions [2016] UKSC 53

MB, a transsexual woman who remained married to her wife, was refused a state pension at age 60 because UK law required her marriage to be annulled before her acquired female gender could be legally recognised. The Supreme Court, being divided, referred the compatibility question to the CJEU.

Facts

MB was registered as male at birth in 1948 and married her wife in 1974. She began living as a woman in 1991 and underwent sex reassignment surgery in 1995. MB and her wife continue to live together and, for religious reasons, do not wish to have their marriage annulled, even if it could be replaced by a civil partnership. Consequently, MB has never applied for a gender recognition certificate under the Gender Recognition Act 2004.

On reaching age 60 in 2008, MB applied for a state retirement pension on the basis that she was a woman. The application was refused because, without a full gender recognition certificate, she could not be treated as a woman for pension purposes. That refusal was upheld by the First-tier Tribunal, the Upper Tribunal and the Court of Appeal.

Under the Gender Recognition Act 2004 as it then stood, a married applicant who satisfied the physical and psychological criteria for gender recognition was only entitled to an interim certificate (section 4(3)). A full certificate could only follow annulment of the marriage. This is referred to as the “marriage condition”. The Marriage (Same Sex Couples) Act 2013 subsequently amended this position, but does not apply retrospectively to MB.

Issues

The central issue was whether Council Directive 79/7/EEC on the progressive implementation of equal treatment of men and women in matters of social security precludes a national law 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.

Arguments

For MB

It was submitted that the CJEU in P v S and Cornwall County Council and Richards v Secretary of State for Work and Pensions had already extended the article 4(1) prohibition on sex discrimination to discrimination between persons of a given birth gender and persons who acquired that gender by reassignment. While member states may lay down conditions for recognising a change of gender, that power is confined to conditions relating to the objective physical or psychological characteristics which determine an applicant’s gender and may not extend to matters such as marital status, which are irrelevant to gender. Since holders of an interim certificate must already have satisfied the physical and psychological criteria, imposing a further condition only on married applicants is unlawful discrimination. Even if protecting the traditional concept of marriage could justify the marriage condition generally, it could not justify making pension eligibility contingent upon it. MB also argued indirect discrimination, since the majority of those undergoing gender reassignment are male-to-female.

For the Secretary of State

The Secretary of State argued that Richards concerned the absence of any recognition mechanism, a lacuna now filled in the United Kingdom by the 2004 Act. Both the CJEU (in KB and Richards) and the ECtHR (in Goodwin v United Kingdom) recognise that the conditions for legal recognition of gender change are a matter for national law. Those conditions are not limited to social, physical and psychological criteria; gender reassignment has wider social implications, including for the status of marriage, which national law is entitled to regulate. The ECtHR has upheld equivalent marriage conditions in Parry v United Kingdom and Hamalainen v Finland, on the basis that, since the Convention does not require states to permit same-sex marriage, a state may legitimately preserve the traditional definition of marriage, particularly where civil partnership is available as an alternative. No indirect discrimination arose because there was no reason to think it more difficult for male-to-female transsexuals to obtain a certificate than for female-to-male transsexuals.

Judgment

Lord Sumption, giving the leading judgment with which Lady Hale, Lord Wilson, Lord Toulson and Lord Hodge agreed, recorded that the Supreme Court was divided on the question. In the absence of CJEU authority directly in point, the Court concluded that it could not finally resolve the appeal and that a reference to the Court of Justice of the European Union was required.

The Court accordingly referred the following question: whether Council Directive 79/7/EEC 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.

Implications

The judgment does not itself resolve the compatibility question. Its significance is that the Supreme Court, divided on the issue, recognised genuine uncertainty as to the scope of member states’ competence to attach conditions to gender recognition under Directive 79/7. In particular, the case raises whether the acknowledged national competence to set conditions for recognising a change of gender extends to conditions tied to marital status, when those conditions affect access to a social security benefit governed by EU equal treatment law.

The decision is significant for transsexual persons in long-standing marriages predating the Marriage (Same Sex Couples) Act 2013 who were caught by the marriage condition and were thereby unable to obtain pension entitlement on the basis of their acquired gender. It also illustrates the interaction between EU equal treatment law in social security and national autonomy over the legal recognition of gender and the institution of marriage. The ultimate determination of the principle was left to the CJEU on the reference made.

Verdict: The Supreme Court, being divided on the issue and in the absence of directly applicable Court of Justice authority, did not finally determine the appeal but referred to the Court of Justice of the European Union the question whether Directive 79/7/EEC precludes a national law requirement that a person who has changed gender must also be unmarried in order to qualify for a state retirement pension.

Source: MB v Secretary of State for Work and Pensions [2016] UKSC 53