MB v Secretary of State for Work And Pensions

The Court of Appeal dismissed the appellant's challenge to the Secretary of State's refusal to pay a state pension at female pensionable age. The issues were whether Directive 79/7/EEC (the Social Security Directive) and the direct-effect authorities of the Court of Justice (in particular Richards and the domestic decision in Timbrell) entitled a married male-to-female transsexual to be treated as a woman for pension purposes despite not holding a full gender recognition certificate under the Gender Recognition Act 2004, and whether the Equality Act 2010 provided a separate cause of action.

The court held that the Gender Recognition Act 2004 provides a domestic, comprehensive scheme for recognition of acquired gender and that the conditions for obtaining a full gender recognition certificate (including the requirement under section 4 that a subsisting marriage be annulled) fall within the margin of appreciation and are not unjustifiable as contrary to the Social Security Directive. The Grand Chamber judgment in Hämäläinen v Finland was treated as persuasive and dispositive on the question of whether requiring termination or conversion of a marriage before legal recognition of acquired gender is disproportionate. On that basis the appellant's Directive claim failed, and any claim under the Equality Act 2010 added nothing: if the section 4 requirement is not discriminatory under European law it cannot give rise to a freestanding discrimination claim under the 2010 Act.

The appellant is a male-to-female transsexual born in 1948 who began living as a woman in 1991 and underwent surgery in 1995. She remained married to the woman she married in 1974 and did not seek annulment of that marriage because she and her wife wished to remain married. The Gender Recognition Act 2004 permits issue of a full gender recognition certificate which makes the acquired gender effective for all purposes, but it disqualifies married persons from obtaining a full certificate unless the marriage is annulled; an interim certificate has no effect while the marriage subsists. The appellant applied for a state pension on reaching what is female pensionable age (60) and was refused on the basis that, in law, she remained a man and was not entitled to a pension until male pensionable age (65).

The proceedings: the appellant's appeal to the First-tier Tribunal was dismissed by reserved judgment of 6 January 2010. She obtained permission to appeal to the Upper Tribunal and her appeal was dismissed by Upper Tribunal Judge Wright ([2013] UKUT 290 (AAC)). Lewison LJ gave permission to appeal to the Court of Appeal on 10 January 2014 and anonymity was granted. The Court of Appeal heard the appeal on 21 May 2014 and gave judgment on 31 July 2014.

The nature of the claim and relief sought: (i) a claim under the Social Security Directive 79/7/EEC that withholding female pension rights because the appellant lacked a full gender recognition certificate was contrary to the principle of equal treatment in social security and that the Directive had direct effect in her circumstances; (ii) alternatively a freestanding claim under the Equality Act 2010 alleging discrimination in the exercise of a public function (denial of a pension at female pensionable age).

Issues framed by the court: whether the Directive as interpreted in Richards and applied in Timbrell entitled the appellant to be treated as female for pension purposes notwithstanding the Gender Recognition Act 2004; whether the requirement in section 4 of the 2004 Act that a subsisting marriage be annulled before a full gender recognition certificate can be issued is unjustifiable and disproportionate; and whether a separate claim under the Equality Act 2010 could succeed.

Court's reasoning in brief: the court held that Richards and Timbrell were decided in the context of an absence of domestic legislation for recognising acquired gender. The 2004 Act now provides a comprehensive statutory framework which makes legal recognition of acquired gender depend on issue of a full gender recognition certificate and on the conditions Parliament has prescribed. The court accepted that EU law does not give member states carte blanche, but in the absence of a European consensus and given the sensitive moral and ethical issues, the margin of appreciation is wide. The recent Grand Chamber decision in Hämäläinen v Finland (no. 37359/09) confirmed that conditioning legal recognition on ending or converting a marriage where same-sex marriage is not permitted does not in principle breach Convention rights, and that reasoning was persuasive and applicable. Consequently the requirement in section 4 of the 2004 Act was not unlawful under the Directive and there was no additional freestanding discrimination remedy available under the Equality Act 2010.

The court therefore dismissed the appeal. It observed the unfortunate timing for the appellant that subsequent domestic reform (the Marriage (Same Sex Couples) Act 2013 provisions) would remove the difficulty for future cases but were not retrospective.

Appeal dismissed. The Court held that the Gender Recognition Act 2004 provides a comprehensive domestic scheme for legal recognition of acquired gender, and the requirement in section 4 that a subsisting marriage be annulled before a full gender recognition certificate is issued is not unjustifiable under Directive 79/7/EEC. The Grand Chamber decision in Hämäläinen v Finland was persuasive and confirmed that, in the absence of a European consensus, states enjoy a wide margin of appreciation in this sensitive area. Accordingly the appellant was not entitled to pension rights at female pensionable age and any claim under the Equality Act 2010 added nothing.

First-tier Tribunal: appeal dismissed (reserved judgment dated 6 January 2010). Upper Tribunal (Administrative Appeals Chamber): appeal dismissed by Judge Wright ([2013] UKUT 290 (AAC)). Permission to appeal to the Court of Appeal granted by Lewison LJ on 10 January 2014. Court of Appeal judgment: [2014] EWCA Civ 1112 (31 July 2014), appeal dismissed.