18
(1)
A person does not contravene this Part of this Act, so far as relating to sexual orientation, by doing anything which prevents or restricts a person who is not within sub-paragraph (1A) from having access to a benefit, facility or service—
(a)
the right to which accrued before 5 December 2005 (the day on which section 1 of the Civil Partnership Act 2004 came into force), or
(b)
which is payable in respect of periods of service before that date.
(1A)
A person is within this sub-paragraph if the person is—
(a)
a man who is married to a woman, or
(b)
a woman who is married to a man, or
(c)
married to a person of the same sex in a relevant gender change case.
(1B)
The reference in sub-paragraph (1A)(c) to a relevant gender change case is a reference to a case where—
(a)
the married couple were of the opposite sex at the time of their marriage, and
(b)
a full gender recognition certificate has been issued to one of the couple under the Gender Recognition Act 2004.
(1C)
Sub-paragraph (1) does not apply in relation to access to a benefit payable under an occupational pension scheme to the surviving spouse or surviving civil partner of a deceased member or deceased pension credit member of the scheme.
(2)
A person does not contravene this Part of this Act, so far as relating to sexual orientation, by providing married persons and civil partners (to the exclusion of all other persons) with access to a benefit, facility or service.
Cases considering Schedule 9, paragraph 18 4
[2025] UKSC 16 · 16 April 2025Interprets
The express treatment of relevant gender-change marriages shows that Parliament referred specifically to certificate consequences where intended, while using man and woman biologically. (see paras [181]-[182])
[2017] UKSC 47 · 12 July 2017Disapplies
The exception permitting restriction of pension benefits by reference to pre-5 December 2005 service was incompatible with the Framework Directive where it authorised unequal future survivor’s pension payments. It had to be disapplied to that extent (see paras [20]-[21]; [72]-[76]).
The provision could not lawfully authorise restriction of future survivor’s benefits because the underlying service occurred before 5 December 2005. The restriction conflicted with the Framework Directive (see para [72]).
The appellant did not fall within the categories specified by this provision (see para [21]).
[2015] EWCA Civ 1000 · 6 October 2015Limits
The court held that Schedule 9 paragraph 18 was clearly intended to prevent sexual-orientation discrimination claims concerning pension benefits accrued from service before 5 December 2005 and was compatible with the Framework Directive (see paras [32]-[35]; [47]-[48]).
The court applied the exclusion for benefits whose right accrued before 5 December 2005 or which were payable in respect of earlier service. It concluded that the provision prevented the claim based on Mr Walker’s completed pre-commencement service (see paras [32]-[35]).
The court treated the definition of persons within the protected exception as excluding Mr Walker, because he was not married to a person of the opposite sex and his service predated the relevant statutory change (see paras [32]-[35]).
1 more judgment, and what each says about Schedule 9, paragraph 18, are in the
case-law panel in the full Act.