Labour & European Law Review Weekly Issue 494 02 November 2016
Up until 2014 when same-sex marriage became legal, anyone with a full certificate of gender recognition was entitled to a state pension according to the rules relating to their acquired gender, unless they were married. In MB v Secretary of State for Work and Pensions, the Supreme Court asked the Court of Justice of the European Union whether EU law precludes national law from requiring a transgender person to be unmarried to qualify for a state pension.
The claimant in this case, known only as MB, was registered as a man at birth but underwent gender reassignment surgery in 1995 after living as a woman for the previous four years. She did not obtain a full gender recognition certificate under the Gender Recognition Act 2004 because she and her wife wanted to remain married. At the time, she could only obtain a gender recognition certificate if she first applied for her marriage to be annulled.
On 31 May 2008, MB turned 60. In July of that year, she applied for a state retirement pension, backdated to her 60th birthday. Her application was rejected, however, because in the absence of a full gender recognition certificate, she was still treated as a man and so did not qualify for a pension until the age of 65.
MB claimed that the refusal to grant her a state pension when she reached 60 was contrary to the principle of equal treatment under the European Directive 97/7/EEC on the Progressive Implementation of the Principle of Equal Treatment for Men and Women in Matters of Social Security. Her claim was rejected by the lower tribunals and the Court of Appeal and she appealed to the Supreme Court.
Relevant UK law
UK law states that a woman born before 6 April 1950 is eligible for the state retirement pension at the age of 60, and a man born before 6 December 1953 is eligible at the age of 65.
The Marriage (Same Sex Couples) Act 2013 which came into force on 17 July 2013 allows transsexuals to obtain a full gender recognition certificate without having the marriage annulled.
Relevant EU law
Article 4 of Directive 97/7/EEC provides that there shall be “no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status”. Article 7(a) gives member states the right to exclude pension ages from the scope of the directive, a right that the UK exercised.
Supreme Court decision
MB argued that article 4(1) of the directive prohibits discrimination between people who have a particular birth gender and those who acquire that gender. Although member states can decide the conditions by which someone may acquire a gender, that only applies to physical or psychological characteristics and not to marital status. As such, the Gender Recognition Act 2004 discriminated against her directly on the grounds of sex. It also discriminated indirectly against her because most people who have undergone gender reassignment have been reassigned from male to female.
As the Supreme Court was divided on the issue, it decided to ask the Court of Justice of the European Union to decide whether member states can impose a requirement that someone who has changed gender must also be unmarried in order to qualify for a state pension.