Bavin v the NHS Pensions Agency and Secretary of State for Health
IDS Brief 646 (October 1999)

The EAT has revisited the question of survivors' pension rights for unmarried partners - this time in the context of an unmarried couple where one of the partners was a transsexual who had undergone gender reassignment surgery.

The reason why there is a problem is that whilst occupational pension schemes invariably provide a spouse's pension in the event that a member or pensioner dies (and must do so if it contracts out of SERPS on the usual "reference scheme" test), a spouse, for these purposes, means the person the deceased was legally married to at the time of death. Some schemes provide a pension for an unmarried partner (of the same sex or of the opposite sex) if there is no spouse - but there is no legal obligation to do so.

Same-sex couples cannot marry in the law of this country. Nor can transsexuals. In the eyes of the law, a transsexual keeps the same gender that he or she was born with until he or she dies.

Ms. Bavin was a member of the NHS Pension scheme, who lived with a transsexual (male) partner. The law regarded her partner as a woman, and they could not marry. Ms. Bavin complained to an Employment Tribunal that the NHS Pension Scheme discriminated against her, by not providing a survivor's pension to her partner, on the ground of her partner's sex.

The EAT disagreed. It found that the discrimination was on the ground of Ms. Bavin's marital status: and whilst it is unlawful to discriminate against married people on the ground of their marital status, it is lawful to discriminate against single people. In doing so, the EAT followed the reasoning of the European Court of Justice in the case of Lisa Grant v South West Trains (see Issue 20 of LELR). There, the ECJ found that it was lawful to deny free travel facilities to a lesbian partner, where they were available to a spouse.

The ECJ also found, however, in the case of P v S (see Issue 1 of LELR), that it was unlawful to dismiss a person because he was about to undergo gender reassignment surgery. He was treated less favourably than members of the same sex which he was born with, and that contravened the Equal Treatment Directive. Wasn't Ms. Bavin treated less favourably on the grounds of her partner's reassignment?

But, said the EAT in this case, Ms. Bavin was discriminated against because she was unmarried. The reason why she was unmarried was beside the point the EAT held. But this is to miss the point and is reminiscent of the fatuous argument around pregnancy dismissals when employers argued that absence on pregnancy leave was not inextricably linked with pregnancy. The House of Lords and the ECJ nailed this myth.

The root cause for this state of affairs is law's refusal to recognise gender re-assignment or same sex marriage. Sadly, the European Convention of Human Rights does not help: the European Court of Human Rights (which is responsible for policing the Convention) has held that states are not obliged to give legal recognition to gender reassignment.

We will have to wait for specific legislation, and the UK is trailing the field. A number of European countries have legislation in place which allows couples to register a same-sex relationship giving it the same force, in law, as a marriage. The Republic of Ireland has just enacted wide-ranging legislation preventing discrimination on seven different grounds, including sexual orientation.

The Law Commission in England and Wales is examining the issue and the Law Commission in Scotland has just done so, recommending that the law be changed to give some legal recognition to unmarried partnerships (of the same or opposite sex). Perhaps the wait will not be too long.