Transgender Pension Dispute Referred to European Court of Justice

A woman who chose to remain married to her wife following gender reassignment surgery will have her claim that UK pension rules cause gender reassignment discrimination for against people in her position considered by European Court of Justice (CJEU) after her arguments left the Supreme Court divided.

The woman, who was registered as a boy at birth, underwent the operation in 1995. However, she was ineligible for a full gender recognition certificate under the Gender Recognition Act 2004 because she was still married to her wife and had no wish to have the marriage annulled. Same-sex marriages were not at that time recognised under English law and only became so in 2014 by virtue of the Marriage (Same Sex Couples) Act 2013.

The absence of a certificate led the Department of Work and Pensions to refuse her application to have her state pension back-dated to her 60th birthday, the date on which she would have been entitled to a pension had she been born female. The DWP instead ruled that she did not qualify for a pension until she reached the age of 65, as if she remained a man. Her challenge to that decision was later rejected by the First-tier Tribunal, the Upper Tribunal and the Court of Appeal.

In appealing against the latter ruling before the Supreme Court, her lawyers argued that the decision was inconsistent with the UK’s obligations under Council Directive 97/7/EEC to root out all kinds of discrimination, whether direct or indirect, on grounds of sex by reference in particular to marital or family status. The Directive provided that member states would retain the right to exclude determination of pensionable ages from its scope and the UK had exercised that right.

The Court was divided on the principal issue raised by the case and, since there was no direct legal authority on the point, the case was referred to the CJEU for guidance. The question referred was whether the Directive precludes the imposition in UK law of a requirement that, in addition to satisfying the physical, social and psychological criteria for recognising a change of gender, a person who has changed gender must also be unmarried in order to qualify for a state pension