Supreme Court orders reference to Court of Justice of the European Union in case of transgender woman refused state pension at age 60 after failing to meet certification requirements.
In the case of MB v Secretary of State for Work and Pensions  UKSC 53 which relates to a claim to the DWP for a state pension made by MB, a transgender woman who changed gender from male to female in 1991 and had undergone gender reassignment surgery in 1995.
The claim was made when MB reached the state pension age of 60 in 2008, the relevant state pension age for women at the time. Her claim was rejected, on the basis she had not obtained a full gender recognition certificate under the Gender Recognition Act 2004. The state pension claim was refused on the basis that MB was a man and would have to wait until the age of 65 for the male pension.
Transgender people have the right to apply for a full “gender-recognition certificate” under the 2004 Gender Recognition Act, but a certificate cannot be issued to a married person who does not have their marriage annulled on the basis of their gender change. MB, who married in 1974, did not apply for a gender-recognition certificate. For religious reasons, she was unwilling to take this step, since although it would have enabled her to be treated as a woman for this purpose, it would also have entailed the annulment of her marriage to her wife and also the mother of her two children.
When the Gender Recognition Act was passed, “a valid marriage could subsist in law only between a man and a woman”. Under the provisions of the Marriage (Same Sex Couples) Act 2013, which came into full force in December 2014, a full gender-recognition certificate can be obtained without a marriage having to be annulled, provided the applicant’s spouse consents. However, those provisions are not retrospective and do not give MB any right to a pension from the age of 60.
MB lost her case at the Court of Appeal in 2014 when judges upheld a decision by the Department for Work and Pensions to refuse her a female pension.
When the Court of Appeal rejected the claim, Lord Justice Maurine Kay described MB as the victim of “a real misfortune” and said changes in the law had occurred “too late for her to benefit from them”. However, the appeal judges unanimously declared the refusal did not contravene the principle of equal treatment and was not discriminatory.
The matter reached the Supreme Court in July 2016 on a further appeal when it was argued that the DWP’s reliance on domestic UK pensions legislation was in contravention of EU laws.
The case poses the question of whether European law “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”.
The Supreme Court was divided on the correct answer to the question and since there is no Court of Justice of the European Union authority on this point, it refers the question for their guidance.
Whilst this decision marks some progress in getting the case resolved, the slowness of getting the case resolved has no doubt been highly frustrating for the pensioner involved. There are various related cases which have all been delayed pending the outcome of the Supreme Court’s judgment. Although the numbers are small, this is an important test of the UK’s commitment to diversity and inclusivity.