The case of a 68-year-old transgender woman who was refused the female state pension at the age of 60 because she chose to stay married has been referred by the supreme court to judges in Europe “for their guidance”.
The case of MB – who transitioned from male to female, but decided as a Christian to stay married “in the eyes of God” to her wife and the mother of their two children – was heard in the UK’s highest court in July.
Five supreme court justices announced on Wednesday that they were referring the legal question raised in the proceedings to the court of justice of the European Union (CJEU).
MB, who cannot be identified, lost her case at the court of appeal in 2014 when judges upheld a decision by the Department for Work and Pensions to refuse her a female pension.
Transgender people have the right to apply for a full “gender-recognition certificate” under the 2004 Gender Recognition Act, but a certificate cannot be issued to a married person who does not have their marriage annulled on the basis of their gender change. MB, who married in 1974, did not apply for a gender-recognition certificate.
When she reached her 60th birthday in May 2008, having lived as a woman since 1991 and undergone gender reassignment surgery in 1995, she applied for a state pension but was refused on the basis that she was a man and would have to wait until the age of 65 for the male pension.
When the court of appeal rejected the claim, Lord Justice Maurine Kay described MB as the victim of “a real misfortune” and said changes in the law had occurred “too late for her to benefit from them”. But the appeal judges unanimously declared the refusal did not contravene the principle of equal treatment and was not discriminatory.
MB’s lawyers argued before the supreme court that the DWP’s reliance on domestic UK pensions legislation was in contravention of EU laws.
The case poses the question of whether European law “precludes the imposition in national 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 retirement pension”.
When the Gender Recognition Act was passed, “a valid marriage could subsist in law only between a man and a woman”. Under the provisions of the Marriage (Same Sex Couples) Act 2013, which came into full force in December 2014, a full gender-recognition certificate can be obtained without a marriage having to be annulled, provided the applicant’s spouse consents. But those provisions are not retrospective and do not give MB any right to a pension from the age of 60.
The supreme court’s deputy president, Brenda Hale, along with Nicholas Wilson, Jonathan Sumption, Roger Toulson and Patrick Hodge, said the court was divided on the correct answer to the question and that “since there is no CJEU authority directly in point, it refers the question for their guidance”.
Christopher Stothers, of the law firm Arnold and Porter, representing MB, said it was pleased with the decision, but the slowness of getting the case resolved was “highly frustrating for the pensioners involved”.
He said: “There are various related cases which have all been delated pending the outcome of the supreme court judgment. Although the numbers are small – those affected potentially in the hundreds, with cases in the tens – this is an important test of the UK’s commitment to diversity and inclusivity.”
