MB v Secretary of State for Work and Pensions

The prohibition of sex discrimination in article 4 of Council Directive 79/7/EEC has direct effect in relation to state benefits. It remained unclear whether the Directive permits national law to require a person who has changed gender to be unmarried before the acquired gender can govern eligibility for a state retirement pension.

Because the Supreme Court was divided and no decision of the Court of Justice directly resolved that question, the appeal could not be finally determined without a preliminary ruling.

MB was registered as male at birth, later underwent gender reassignment and continued to live with her wife. She did not apply for a full gender recognition certificate because, under the law then in force, obtaining one required the annulment of their marriage.

Upon reaching the pensionable age applicable to women, MB applied for a state retirement pension. The application was refused because she lacked a full gender recognition certificate. The First-tier Tribunal, Upper Tribunal and Court of Appeal, in [2014] EWCA Civ 1112, upheld that refusal.

The Supreme Court had to consider whether Council Directive 79/7/EEC precluded national legislation requiring a person who had changed gender to be unmarried before qualifying for a state retirement pension in the acquired gender.

1. The question was referred to the Court of Justice and the appeal was not finally determined. Lord Sumption delivered the judgment, with which Lady Hale, Lord Wilson, Lord Toulson and Lord Hodge agreed. Although all five Justices agreed upon the reference, the Supreme Court was divided on the answer to the underlying question.

2. Article 4 of Council Directive 79/7/EEC prohibits direct and indirect discrimination on grounds of sex in state social security benefits. Its material provisions have direct effect. Article 7.1(a) nevertheless permits member states to exclude from the Directive the determination of pensionable age for old-age and retirement pensions. The United Kingdom had exercised that option by maintaining different pensionable ages for men and women in the relevant age groups.

3. Under the former scheme in the Gender Recognition Act 2004, an unmarried applicant who satisfied the statutory criteria could obtain a full gender recognition certificate. A married applicant could initially obtain only an interim certificate. That certificate enabled annulment of the marriage, after which a full certificate could be issued. Without a full certificate, the acquired gender did not govern pension entitlement.

4. MB contended that a marriage condition unrelated to the physical, social and psychological criteria for gender recognition constituted unlawful direct or indirect sex discrimination. The Secretary of State contended that EU law left the conditions for legal recognition of acquired gender to member states and permitted account to be taken of the legal status of marriage.

5. No authority of the Court of Justice directly determined whether the Directive permitted such a marriage condition. The Supreme Court therefore referred the question whether the Directive precludes national law from requiring a person who satisfies the physical, social and psychological criteria for recognition of changed gender also to be unmarried in order to qualify for a state retirement pension.

1. United Kingdom Supreme Court: The Court was divided on the substantive EU-law question and unanimously referred it to the Court of Justice. The appeal was not finally resolved: [2016] UKSC 53.
2. Court of Appeal: Upheld the refusal of MB’s pension claim on 31 July 2014: [2014] EWCA Civ 1112.
3. Upper Tribunal: Upheld the refusal on 13 September 2013.
4. First-tier Tribunal: Upheld the refusal on 18 November 2009.