MB v Secretary of State for Work And Pensions

A transsexual person’s acquired gender is not recognised for legal rights depending on gender unless a full gender recognition certificate has been issued under the Gender Recognition Act 2004. The Social Security Directive does not itself prescribe less restrictive conditions once domestic law provides a legal recognition scheme. Requiring annulment of a subsisting marriage before issuing a full certificate is lawful where it avoids recognition of a same-sex marriage and strikes a fair balance, particularly where an alternative civil partnership is available. The Equality Act 2010 adds no separate remedy where the requirement is not discriminatory.

MB, a male-to-female transsexual person, married before transition and did not wish to annul the marriage. She applied for a state pension at 60, but was treated as male under the pension legislation and required to wait until 65.

The First-tier Tribunal dismissed her appeal against the Secretary of State’s refusal. Upper Tribunal Judge Wright dismissed a further appeal in [2013] UKUT 290 (AAC). Before the Court of Appeal, MB relied on the Social Security Directive and the Equality Act 2010. The central issue was whether EU law required her to be treated as a woman for pension purposes despite the absence of a full gender recognition certificate because she had not annulled her marriage.

The appeal was dismissed. Underhill LJ gave the substantive judgment, with Aikens LJ and Maurice Kay LJ agreeing.

1. Legal gender. For legal rights depending on gender, a precise and formally recognisable definition was required. The court accepted that, unless gender reassignment was recognised under the statutory scheme, a person’s legal gender remained that registered at birth. Under section 9 of the Gender Recognition Act 2004, acquired gender became the person’s gender for all purposes only when a full gender recognition certificate was issued. The approach accepted in Bellinger v Bellinger [2003] 2 AC 467 was therefore correctly applied to pension legislation.
2. The Social Security Directive. Richards v Secretary of State for Work and Pensions C-423/04 and Timbrell v Secretary of State for Work and Pensions [2010] EWCA Civ 701 concerned the earlier situation in which the United Kingdom provided no legislative or other legal means of recognising acquired gender. Those decisions did not prescribe less restrictive conditions once Parliament had enacted a statutory scheme. Member States could determine the conditions for recognition, subject to the prohibition of unjustifiable restrictions.
3. Marriage condition. The purpose of requiring annulment was to avoid recognising a same-sex marriage at a time when such marriages were not otherwise permitted. Applying the reasoning of the Grand Chamber in Hämäläinen v Finland no. 37359/09, the absence of European consensus, the sensitive moral and ethical issues, and the resulting wide margin of appreciation supported the domestic rule. The availability of a civil partnership with nearly identical legal protection meant that the requirement struck a fair balance. The reasoning in Parry v United Kingdom 42971/05 supported the same conclusion.
4. Equality Act claim. The proposed claim under Part 3 of the Equality Act 2010 could add nothing because the marriage-annulment condition was not discriminatory. The court also noted that breach of the public sector equality duty did not itself confer a private-law cause of action. The appeal was accordingly dismissed.

• Court of Appeal (Civil Division) dismissed MB’s appeal from the Upper Tribunal. [2014] EWCA Civ 1112
• Upper Tribunal (Administrative Appeals Chamber) dismissed MB’s appeal from the First-tier Tribunal. [2013] UKUT 290 (AAC)
• First-tier Tribunal dismissed MB’s appeal against the Secretary of State’s refusal of her pension application.