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Supreme Court refers to ECJ case of transgender woman denied state pension at 60

Sec of State argues that full certificate of gender recognition is required

In MB v Secretary of State for Work and Pensions [2016] UKSC 53 the Supreme Court has referred to the European Court of Justice the question whether a European Directive 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.

This case concerns Council Directive 97/7/EEC on the Progressive Implementation of the Principle of Equal Treatment for Men and Women in Matters of Social Security ("the Directive"). Article 4 of the Directive 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) provides that the Directive (which has direct effect) was to be without prejudice to the right of Member States to exclude from its scope the determination of pensionable age for the purpose of granting old age and retirement pensions. The United Kingdom has exercised that right.

Under United Kingdom law, a woman born before 6 April 1950 is eligible for the statement retirement pension at the age of 60, and a man born before 6 December 1953 is eligible at the age of 65. For people born after those dates, the ages will converge over a period of time. At the time relevant to this appeal, the acquired gender of a transgender person was not recognised for the purpose of determining their qualifying pension age, if they were married.

So far as MB was concerned, she was registered at birth as a man but has lived as a woman since 1991 and underwent gender reassignment surgery in 1995. She has not applied for a full gender recognition certificate because she and her wife are married and wish to remain so, a situation at that time precluded by the conditions for obtaining a full gender recognition certificate. On 31 May 2008, MB turned 60. In July of that year, she applied for a state retirement pension, backdated to her 60th birthday. That application was rejected on 2 September 2008 because, in the absence of a gender recognition certificate, MB could not be treated as a woman for the purposes of pension eligibility and would instead become eligible at 65, as if she were a man. The First-tier Tribunal, Upper Tribunal and Court of Appeal all agreed with that approach. The appellant challenged the compatibility of that approach with the Directive.

The Supreme Court has now decided that the issue should be referred to the Court of Justice of the European Union.

For the judgment and official summary (including full reasons for the judgment), click here.