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Neutral Citation Number:	2013 UKUT 290 AAC
Reported Number:
File Number:	CP 2758 2011
Appellant:	MB
Respondent:	Secretary of State for Work and Pensions (RP)
Judge/Commissioner:	Judge S. Wright
Date Of Decision:	18/06/2013
Date Added:	07/08/2013
Main Category:	European Union law
Main Subcategory:	Council directive 79/7/EEC
Secondary Category:	Retirement pensions
Secondary Subcategory:	other
Notes:	Decision of the Court of Justice of the European Union reported as [2018] AACR 37. Discrimination — sex — equal treatment — married prior to gender reassignment — gender recognition certificate dependent on annulment of marriage — applicant not wishing to annul marriage — application made for state pension at pensionable age for women — refusal of pension on ground of not having attained male pensionable age — whether requirement to annul marriage direct discrimination — whether contrary to European Union principle of equal treatment. The applicant, MB, was born a male in 1948 and married a woman in 1974. In 1991, MB started to live as a woman and underwent sex reassignment surgery in 1995. She was then entitled to apply for a gender recognition certificate under section 1(1) of the Gender Recognition Act 2004 but under section 4(3) the issue of a full certificate, by which her acquired gender would be recognised for all legal rights, was conditional on the annulment of her marriage and she and her wife had chosen to remain married for religious reasons. Under section 4(2) an unmarried applicant was entitled to a full gender recognition certificate. In 2008, MB reached the age of 60 which was the age at which women born before the 6 April 1950 were eligible under the national law to receive a ‘Category A’ retirement pension from the state. Men were not eligible until they had reached the age of 65. The Secretary of State for Work and Pensions refused her application on the ground that without a full gender recognition certificate she could not be treated as a woman for the purposes of determining her statutory pensionable age. MB appealed to the United Kingdom Supreme Court following unsuccessful appeals to the First-tier Tribunal, the Upper Tribunal and the Court of Appeal (Civil Division) on the ground that the refusal was unlawful because it was contrary to the principle of equal treatment in article 4(1) of Council Directive 79/7/EEC. The Supreme Court requested a preliminary ruling from the Court of Justice of the European Union on the question whether article 4(1), read in conjunction with the derogation in article 7(1)(a), which gave member states the right to determine pensionable age, precluded the imposition of a requirement that, in addition to satisfying the physical, social and psychological criteria for recognising a change of gender, a person who changed gender had also to be unmarried to qualify for a state retirement pension. Held, that: 1. The national legislation at issue in the main proceedings before the Supreme Court accorded less favourable treatment, directly based on sex, to a person who changed gender after marrying, than that accorded to a person who has kept his or her birth gender and is married, even if those persons were in comparable situations. The objective invoked by the United Kingdom Government did not correspond to any of the derogations allowed under Directive 79/7 and consequently the national legislation constituted direct discrimination on grounds of sex prohibited by Directive 79/7(paragraphs 48-52). 2. The answer to the question referred was that Directive 79/7, in particular the first indent of Article 4(1) requiring member states to comply with the principle of non discrimination on grounds of sex in regard to social security, read in conjunction with the third indent of Article 3(1)(a) and Article 7 (1) (a), was interpreted as precluding national legislation which requires a person who has changed gender not only to fulfil physical, social and psychological criteria but also to satisfy the condition of not being married to a person of the gender that he or she had acquired as a result of that change and, lived with for many years, in order to be able to claim a State retirement pension from the statutory pensionable age applicable to persons of his or her acquired gender (paragraph 53).
Decision(s) to Download:	CP 2758 2011-00.doc [2018] AACR 37ws.pdf