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Neutral Citation Number:	2009 49
Reported Number:
File Number:	CP 1161 2007
Appellant:	Timbrell v Secretary of State for Work and Pensions
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Judge E. Jupp
Date Of Decision:	22/06/2010
Date Added:	17/04/2009
Main Category:	Retirement pensions
Main Subcategory:	other
Secondary Category:
Secondary Subcategory:
Notes:	Court of Appeal decision reported as [2011] AACR 13. European Union law – discrimination on ground of sex – male-to-female transgender person remaining married to wife and claiming Category A retirement pension before Gender Recognition Act 2004 came into force – whether criteria of Act apply The claimant was born a male and underwent gender reassignment surgery in 2000. She reached the pension age for a woman, then 60, in 2001 and claimed a Category A retirement pension. That claim was not decided. The Gender Recognition Act 2004 came into force as from 4 April 2005, but the claimant was not eligible for a full gender recognition certificate because she was still married to her wife. In March 2006 she again claimed retirement pension, in anticipation of the judgment of the European Court of Justice (ECJ) in Case C-423/04 Richards v Secretary of State [2006] ECR 1-3585 (also reported as R(P) 1/07). On 11 April 2006 the Secretary of State awarded pension only from her 65th birthday because she did not have a full gender recognition certificate as required by paragraph 7 of Schedule 5 to the Gender Recognition Act. On 27 April 2006 the ECJ held in Richards that upon the correct interpretation of Articles 4 and 7 of Directive 79/7/EEC the refusal of a retirement pension to a male-to-female transgender person until the age of 65 was prohibited if that person would have been entitled to such a pension at the age of 60 had she been held to be a woman as a matter of national law. The claimant’s appeal on her 2006 claim was dismissed and she appealed further. By the time this appeal was decided by the Upper Tribunal the Secretary of State had made a decision refusing her 2002 claim. The Upper Tribunal held that the claimant was not entitled to a state retirement pension before her 65th birthday because she did not satisfy the criteria to be treated as a woman in all respects which could entitle her to receive a Category A state pension at the age of 60 under the Directive (CT v Secretary of State for Work and Pensions [2009] UKUT 49 (AAC)). The claimant appealed to the Court of Appeal. It was common ground that, following Bellinger v Bellinger [2003] UKHL 21; [2003] 2 AC 467, it was not possible under national law, before the Gender Recognition Act came into effect, to treat a person who had undergone gender re-assignment surgery as having the opposite gender to that assigned at birth. Held, allowing the appeal, that: 1. the issue of the claimant’s rights before 4 April 2005 had to be judged on the basis of the law and the legislation in force at the time and the provisions of the Gender Recognition Act have no relevance to the law or events prior to its passing or the date when it came into effect. Insofar as the Upper Tribunal took a different view on this issue, it was wrong to do so (paragraph 38); 2. Richards clearly established that Article 4(1) of Directive 79/7 precludes (on the grounds that it is either directly or indirectly discriminatory) a situation where there is no legislative or other legal means to give recognition to a person’s acquired gender (paragraph 42); 3. the United Kingdom had failed to implement Directive 79/7 within the time permitted to ensure that any national laws, regulations and administrative provisions that were contrary to the principle of “equal treatment”, as defined in Article 4(1) and interpreted in Richards, were abolished so far as concerned acquired gender and rights to pensions (paragraph 44); 4. it is long-established case law of the ECJ that an individual may invoke the provisions of a directive which, from the viewpoint of content, are unconditional and sufficiently precise, against all national legislation which does not conform with it and the Secretary of State could not rely on the provisions of national law and the House of Lords decision in Bellinger v Bellinger to deny the claimant the right to a Category A pension as a woman as from her 60th birthday (paragraphs 45 and 46).
Decision(s) to Download:	CP 1161 2007-00.doc [2011] AACR 13 ws amend.doc