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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> MB v Secretary of State for Work And Pensions  EWCA Civ 1112 (31 July 2014)
Cite as:  ICR 1129,  EWCA Civ 1112,  WLR(D) 355,  HRLR 27,  1 All ER 920
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ON APPEAL FROM Upper Tribunal (Administrative Appeals Chamber)
Upper Tribunal Judge Wright
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE AIKENS
LORD JUSTICE UNDERHILL
|- and -
|SECRETARY OF STATE FOR WORK AND PENSIONS
Mr Ben Lask (instructed by the Solicitor to the Department of Work and Pensions) for the Respondent
Hearing date: 21st May 2014
Crown Copyright ©
Lord Justice Underhill :
(1) The Appellant is a male-to-female transsexual. She was born on 31 May 1948. In 1974, while she was still a man, she married a woman with whom she still lives. They have two daughters. She began to live as a woman in 1991 and underwent gender reassignment surgery in 1995.
(2) With effect from the coming into force of the relevant provisions of the Gender Recognition Act 2004 on 4 April 2005, the Appellant has had the right to apply for a "full gender recognition certificate". Section 9 (1) of the Act provides that "where a full gender recognition certificate is issued to a person, the person's gender becomes for all purposes the acquired gender". However a full certificate cannot be issued to a person who is married (see section 4 (2) and (3)). A married person who has had their gender reassigned is entitled to have the marriage annulled on that basis (see Schedule 2 of the Act, adding gender reassignment to the grounds of voidability under section 12 of the Matrimonial Causes Act 1973); but unless and until they do so their change of gender will not be recognised. The effect of these provisions is common ground and I need not set out their full terms.
(3) The Appellant does not wish to have her marriage annulled. She and her wife have lived as a married couple for 38 years and do not wish to change. Also, as a Christian she says that she and her wife feel married in the sight of God. Accordingly she has not applied for a gender recognition certificate, and so far as the law is concerned she remains a man.
(4) On 31 May 2008 the Appellant became 60. She applied for a state pension on the ground that she had reached what was then the pensionable age for a woman. The application was refused on the basis that she was a man and was accordingly not entitled to a pension until the age of 65. The provisions governing pensionable age for men and women are sections 44 and 122 of the Social Security Contributions and Benefits Act 1992 (section 122 incorporating the definition of pensionable age in para. 1 of Schedule 4 to the Pensions Act 1995). Again, their effect is common ground and I need not set them out in full.
(1) THE SOCIAL SECURITY DIRECTIVE
The purpose of this Directive is the progressive implementation, in the field of social security and other elements of social protection provided for in Article 3, of the principle of equal treatment for men and women in matters of social security, hereinafter referred to as "the principle of equal treatment".
This Directive shall apply to the working population - including self-employed persons, workers and self-employed persons whose activity is interrupted by illness, accident or involuntary unemployment and persons seeking employment - and to retired or invalided workers and self-employed persons.
1. This Directive shall apply to:
(a) statutory schemes which provide protection against the following risks:
(b) … .
2-3. … .
1. The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:
- the scope of the schemes and the conditions of access thereto,
- the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits.
Member States shall take the measures necessary to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished."
"… legislation which denies a person who … has undergone male-to-female gender reassignment entitlement to a retirement pension on the ground that she has not reached the age of 65, when she would have been entitled to such a pension at the age of 60 had she been held to be a woman …"
(see para. 38, at p. 1197). That wording reflected the position prior to the coming into force of the 2004 Act. The "legislation" referred to appears to be the provisions of the Social Security Contributions and Benefits Act 1992 and the Pensions Act 1995. The Court observed (see para. 43, at p. 1197H) that the coming into force of the 2004 Act "is liable to lead to the disappearance of [such] disputes".
"(1) Should this court consider Ms Timbrell's rights to a retirement pension without recourse to the provisions of the 2004 Act?
(2) If so, what is the effect of Directive 79/7 in the light of the decision of the European Court of Justice in the Richards case?
(3) If Directive 79/7 applies to the facts of this case and it is held that the UK legislation and case law (prior to the 2004 Act) is discriminatory with regard to acquired gender and pension entitlement, what is the consequence for Ms Timbrell's claim to a pension from her 60th birthday?"
As to (1), he held that the appellant's rights had to be considered as at the date that she first applied for a pension, so that the subsequent enactment of the 2004 Act was immaterial (paras. 37-38). As to (2), he held that the ECJ had made it clear in Richards that it constituted discrimination contrary to article 4 of the Directive for a transsexual not to be accorded pension rights to which she would be entitled in her acquired gender because of the absence of any means by which that gender could be recognised in law (paras. 39-43). As to (3), he held that the Directive had direct effect so as to entitle her to receipt of pension from age 60 (paras. 44-45).
"In short, as I read para 38 in the Richards case, article 4(1) precludes (on the grounds that it is either directly or indirectly discriminatory) a situation where there is no legislative or other legal means to give recognition to a person's acquired gender."
He also said, at para. 43 (p. 1381 B-D):
"[Counsel for the Secretary of State] is correct in arguing that the decision in the Richards case does not indicate what kind of national legislation should be in place or what sort of conditions ought to be satisfied for the recognition of an acquired gender by means of gender reassignment. That is because, as para 31 of the judgment recognised, that is a matter for national law, not for the Court of Justice to determine. But that cannot alter the fact that the case effectively held that a total lack of any kind of legislative or legal framework in UK law to enable acquired gender to be recognised so as to enable a person who has acquired a new gender to exercise the rights to obtain a retirement pension according to existing legislation constituted discrimination within article 4(1) of Directive 79/7."
In short, the crucial feature in Richards was that there was "no legislative or other legal means to give recognition to a person's acquired gender". (It is a nice point whether that analysis is part of the ratio in Timbrell so as to be binding on us; but in any event I think that it was plainly right – the language of para. 38 in the judgment of the Court speaks for itself.)
"73. From the information available to the Court … it appears that currently ten member States allow same-sex marriage. Moreover, in the majority of the member States not allowing same-sex marriage there is either no clear legal framework for legal gender recognition or no legal provisions specifically dealing with the status of married persons who have undergone gender reassignment. Only in six member States which do not allow same-sex marriage does relevant legislation on gender recognition exist. In those States either the legislation specifically requires that a person be single or divorced or there are general provisions stating that after a change of sex any existing marriage is declared null and void or dissolved. Exceptions allowing a married person to gain legal recognition of his or her acquired gender without having to end a pre-existing marriage seem to exist in only three member States … ."
74. Thus, it cannot be said that there exists any European consensus on allowing same-sex marriages. Nor is there any consensus in those States which do not allow same-sex marriages as to how to deal with gender recognition in the case of a pre-existing marriage. The majority of the member States do not have any kind of legislation on gender recognition in place. In addition to Finland, such legislation appears to exist in only six other States. The exceptions afforded to married transsexuals are even fewer. Thus, there are no signs that the situation in the Council of Europe member States has changed significantly since the Court delivered its latest rulings on these issues.
75. In the absence of a European consensus and taking into account that the case at stake undoubtedly raises sensitive moral or ethical issues, the Court considers that the margin of appreciation to be afforded to the respondent State must still be a wide one (see X, Y and Z v. United Kingdom, [22 April 1997], § 44). This margin must in principle extend both to the State's decision whether or not to enact legislation concerning legal recognition of the new gender of post-operative transsexuals and, having intervened, to the rules it lays down in order to achieve a balance between the competing public and private interests."
Against that background, it turns to consider whether the Finnish legislation strikes the appropriate balance. At paras. 87-88 it concludes:
"87. While it is regrettable that the applicant faces daily situations in which the incorrect identity number creates inconvenience for her, the Court considers that the applicant has a genuine possibility of changing that state of affairs: her marriage can be converted at any time, ex lege, into a registered partnership with the consent of her spouse. If no such consent is obtained, the possibility of divorce, as in any marriage, is always open to her. In the Court's view, it is not disproportionate to require, as a precondition to legal recognition of an acquired gender, that the applicant's marriage be converted into a registered partnership as that is a genuine option which provides legal protection for same-sex couples that is almost identical to that of marriage (see Parry v. the United Kingdom …). The minor differences between these two legal concepts are not capable of rendering the current Finnish system deficient from the point of view of the State's positive obligation.
88. In conclusion, the Court considers that the current Finnish system as a whole has not been shown to be disproportionate in its effects on the applicant and that a fair balance has been struck between the competing interests in the present case."
As regards discrimination the majority held that the applicant's situation was materially different from that of a cissexual and no question of discrimination could accordingly arise (see para. 112).
"In the present case, the Court notes that the requirement that the applicants annul their marriage flows from the position in English law that only persons of the opposite gender may marry; same-sex marriages are not permitted. Nonetheless it is apparent that the applicants may continue their relationship in all its current essentials and may also give it a legal status akin, if not identical to marriage, through a civil partnership which carries with it almost all the same legal rights and obligations. It is true that there will be costs attached to the various procedures. However the Court is not persuaded that these are prohibitive or remove civil partnership as a viable option."
That was evidently the passage to which the majority in the Grand Chamber referred with approval at para. 87 of its judgment in Hämäläinen. Of course I can understand that to some people there may be an important symbolic difference between marriage and civil/registered partnership and that it is distressing to have to terminate an existing marriage, even if it is done by way of annulment rather than divorce. But the majority in the Grand Chamber held, and I agree, that in a context where same-sex marriage is not permitted those consequences have to be accepted.
(2) THE EQUALITY ACT 2010
Maurice Kay LJ:
Note 1 I will refer to the Appellant as “she”, although as appears below she has never applied for a gender recognition certificate.
[Back] Note 2 The 2004 Act was enacted in the light of the decision of the European Court of Human Rights in Goodwin v United Kingdom  IRLR 664, which held that it was a breach of the human rights of a transsexual not to be able to have their change of gender recognised in law.
[Back] Note 3 They can be issued with an interim certificate, but that has no effect unless and until the marriage is annulled – see section 5. [Back] Note 4 The decision of the European Court of Human Rights inHämäläinen v Finland, to which I refer at para. 15 below, now confirms that such a claim could not have succeeded. [Back] Note 5 The judgment as reported, and as it appears on BAILII, refers to para. 31, but I think that must be a slip for “21”: see para. 13 below. [Back] Note 6 Via para. 35 of the judgment of the ECJ in KB (above) – see at p. 804H. [Back] Note 7 Until the 2013 Act the UK would have been a seventh.
[Back] Note 8 There is a fuller analysis of the position in the member states of the Council at paras. 31-33 of the judgment. We had previously been supplied with a schedule prepared by the Ministry of Justice in 2011 which sets out the law about gender recognition in a number of European and other jurisdictions; but it did not focus on the issues of particular interest in this appeal, and in any event what matters for present purposes is the exercise done by the Strasbourg court. [Back] Note 9 The note is in fact the work of Dr Stothers as well as Ms Bretherton, but I hope he will forgive me if in order to avoid clumsiness in the drafting I refer to it simply as hers. [Back] Note 10 And in fact in the case of Austria the reasoning was peculiar to Austrian conditions – see n. 8. [Back]
Note 1 I will refer to the Appellant as “she”, although as appears below she has never applied for a gender recognition certificate. [Back]
Note 2 The 2004 Act was enacted in the light of the decision of the European Court of Human Rights in Goodwin v United Kingdom  IRLR 664, which held that it was a breach of the human rights of a transsexual not to be able to have their change of gender recognised in law. [Back]
Note 3 They can be issued with an interim certificate, but that has no effect unless and until the marriage is annulled – see section 5. [Back]
Note 4 The decision of the European Court of Human Rights inHämäläinen v Finland, to which I refer at para. 15 below, now confirms that such a claim could not have succeeded. [Back]
Note 5 The judgment as reported, and as it appears on BAILII, refers to para. 31, but I think that must be a slip for “21”: see para. 13 below. [Back]
Note 6 Via para. 35 of the judgment of the ECJ in KB (above) – see at p. 804H. [Back]
Note 7 Until the 2013 Act the UK would have been a seventh. [Back]
Note 8 There is a fuller analysis of the position in the member states of the Council at paras. 31-33 of the judgment. We had previously been supplied with a schedule prepared by the Ministry of Justice in 2011 which sets out the law about gender recognition in a number of European and other jurisdictions; but it did not focus on the issues of particular interest in this appeal, and in any event what matters for present purposes is the exercise done by the Strasbourg court. [Back]
Note 9 The note is in fact the work of Dr Stothers as well as Ms Bretherton, but I hope he will forgive me if in order to avoid clumsiness in the drafting I refer to it simply as hers. [Back]
Note 10 And in fact in the case of Austria the reasoning was peculiar to Austrian conditions – see n. 8. [Back]