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Neutral Citation Number:
Reported Number:	R(P)1/09
File Number:	CP 2862 2007
Appellant:
Respondent:
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	13/03/2008
Date Added:	28/07/2008
Main Category:	European Union law
Main Subcategory:	discrimination by gender
Secondary Category:	Retirement pensions
Secondary Subcategory:	deferred retirement
Notes:	Discrimination on ground of sex – pension rights of male-to-female transgender persons under Council Directive 79/7 – claim made before Gender Recognition Act 2004 came into force – claimant under 65 at date of claim The claimant was a male-to-female transgender person who attained the female pension age of 60 in 2002, when she was still living as a man. The Gender Recognition Act 2004 came into effect in April 2005. The claimant had gender reassignment surgery in December 2005 and obtained a full gender recognition certificate in December 2006. She was awarded retirement pension from 25 December 2006. The appeal to the Commissioners was against the refusal by a decision-maker and tribunal of her earlier claim, made in May 2006, asserting entitlement to equal treatment under Article 4(1) of Council Directive 79/7 with a person of the same age born a female, based on the ruling by the European Court of Justice in Case C-423/04 Richards v Secretary of State [2006] ECR I-3585 (now reported as R(P) 1/07) issued on 27 April 2006. Held, dismissing the appeal, that: 1. the claimant, as an individual within the personal scope of Article 4(1) of Council Directive 79/7, was in principle entitled to rely on its direct effect to claim a retirement pension on the basis of equal treatment with any other person of her acquired gender, overriding any conditions in the national legislation which otherwise restricted her to less favourable treatment, both before and after the Gender Recognition Act came into force and whether based on events and circumstances before or after it did so (Richards above; and Cases 286/85 McDermott [1987] ECR 1453 and 384/85 Borrie-Clarke v CAO [1987] ECR 2865 followed) (paragraphs 19, 29 to 31); 2. such a claim was subject to the normal 12-month limit on arrears of possible entitlement under section 1 of the Social Security Administration Act 1992 and the Claims and Payments Regulations, so that the period to be considered on the claim of May 2006 was from May 2005 onwards. That limit was not inconsistent with the claimant’s right to equal treatment under the Directive as it is one of universal application and does not apply in any less favourable way to direct effect claims (Case C-208/90 Emmott v Minister for Social Welfare [1991] I-ECR 4269 distinguished; Case C-410/92 Johnson v CAO (No 2), R(S) 1/95, Secretary of State v Walker-Fox [2005] EWCA Civ 1411, R(IS) 3/06 followed) (paragraphs 21, 33 to 35); 3. on the facts however that claim did not entitle the claimant to any further pension than she had been awarded from December 2006, because (a) the substantive conditions in the Gender Recognition Act for when a change of gender is to be recognised in law are not inconsistent with the requirements of the Directive and were to be applied in determining whether or when the change of gender was to be recognised for the purposes of her equal treatment claim (paragraphs 36 to 41); and (b) it was only in December 2006 that she first became able to demonstrate to the satisfaction of the Gender Recognition Panel that she met those conditions (paragraph 43).
Decision(s) to Download:	R(P)1_09 bv.doc