Timbrell v Secretary of State for Work and Pensions

For the period before the Gender Recognition Act 2004 came into force, pension entitlement had to be assessed under the law then in force. The Act could not retrospectively determine earlier rights. However, the absence of any legal mechanism recognising acquired gender was incompatible with Article 4(1) of Directive 79/7/EEC. The Article 7(1) exception concerning pensionable age did not protect that failure, because the issue was legal recognition rather than the different pensionable ages for men and women. Articles 4(1) and 5 were sufficiently precise and unconditional for direct invocation. The Secretary of State therefore could not rely on domestic pension legislation or Bellinger to refuse an acquired-gender pension from age 60.

Christine Timbrell, who had undergone male-to-female gender reassignment surgery, claimed a Category A retirement pension from age 60. Her claim was made in August 2002, before the Gender Recognition Act 2004 came into force. The Secretary of State ultimately accepted that a valid claim had been made but refused it on the basis that she had not reached the male pensionable age of 65.

The Appeal Tribunal held that, without a full gender recognition certificate, she could not claim as a woman. On 12 March 2009, the Upper Tribunal, in CP/1261/2007, upheld the refusal. The central issues before the Court of Appeal were whether the pre-Act law applied, whether Directive 79/7/EEC prohibited the refusal, and what remedy followed.

Lord Justice Aikens delivered the substantive judgment. Lord Justice Moore-Bick and Lord Justice Thorpe agreed.

1. Disposition. The appeal was allowed and the Upper Tribunal’s decision was reversed. The conclusion was to be embodied in an appropriate declaration, with its precise terms to be settled after counsel had considered a draft.
2. Applicable time period. The claim concerning the period from August 2002 to 4 April 2005 had to be determined under the law in force at that time. The Gender Recognition Act 2004 was not retrospective. Section 9(2) expressly preserved things done and events occurring before a full certificate was issued. The Upper Tribunal therefore erred by assessing the earlier claim through the terms of the later Act.
3. Directive 79/7/EEC. The statutory pension schemes fell within the Directive’s protection against direct or indirect sex discrimination in scheme scope and conditions of access. In Richards v Secretary of State for Work and Pensions Case C-423/04; [2006] ECR 1-3585, the European Court of Justice had given a clear answer: Article 4(1) precluded denying a reassigned male-to-female person a pension at 60 because national law failed to recognise the acquired gender. The Article 7(1) exception concerning pensionable age did not apply, since the issue was the absence of recognition, not the different ages themselves. Member States could determine the conditions for recognition, but could not provide no legal mechanism at all.
4. Direct effect and consequence. Articles 4(1) and 5 imposed precise and unconditional obligations. Applying the principle in Becker v Finanzamt Münster-Innenstadt Case 8/81; [1982] 1 CMLR 499, Ms Timbrell could invoke those provisions against inconsistent national law. The Secretary of State could not rely on the Social Security Contributions and Benefits Act 1992, the Pensions Act 1995, or Bellinger v Bellinger [2003] 2 AC 467 to deny the pension. The remedy was not confined to damages; the acquired-gender pension right had to be recognised from age 60.

1. Court of Appeal (Civil Division) — On 22 June 2010, the court allowed the appeal, reversed the Upper Tribunal’s decision and directed that the conclusion be embodied in an appropriate declaration.
2. Upper Tribunal (Administrative Appeal Chamber) — On 12 March 2009, in CP/1261/2007, Judge Jupp held that Ms Timbrell was not entitled to a state retirement pension before age 65 because she did not satisfy the criteria for treatment as a woman.
3. Appeal Tribunal — On 20 November 2006, the tribunal held that, without a full gender recognition certificate under the Gender Recognition Act 2004, Ms Timbrell could not claim a pension as a woman. It did not determine the period before the Act came into force.