Denial of UK State Pension to male-to-female trans pensioner without a Gender Recognition Certificate constitutes direct sex discrimination contrary to EU Directive 79/7.
In MB v Secretary of State for Work & Pensions, Advocate General Bobek considers that the requirement for a trans pensioner to be unmarried in order to qualify for a state pension is unlawful but emphasises that the case is not about same sex marriage, nor about the conditions in UK law for securing full gender recognition. Claire McCann considers what it is about….
MB – a male-to-female transgender pensioner – challenged the DWP’s refusal to grant her a state pension at the age of 60 (this being the relevant female state pension age at the material time) in circumstances where she could not obtain a full Gender Recognition Certificate (GRC) under the Gender Recognition Act 2004 (GRA 2004), which would have entitled her to a female state pension, because she is married.
MB has been married to a woman since 1974. She underwent gender reassignment surgery in 1995. In 2008, she turned 60 which, at the time, was the legal retirement age for women in the UK. She applied for a state pension, her application being rejected because she had not gone through the procedure for legal recognition of her acquired gender under the GRA 2004, such that she could not be recognised “for all purposes” as female. She had decided not to apply for a GRC because, at that time, a married applicant would be required to have his/her marriage annulled since same sex marriage was not then permitted under UK law. MB and her wife were not willing to see their marriage annulled and converted into a civil partnership for reasons of religious conviction.
Civil status, of course, is entirely irrelevant to the entitlement of cisgender men or women to basic state pension.
In August 2016, the Supreme Court referred a question to the Court of Justice of the European Union (CJEU) asking whether the EU Directive on equal treatment for men and women in matters of social security (Directive 79/7) precludes the imposition in national law of a requirement that a person must be unmarried in order to qualify for a state pension, where they have undergone gender reassignment.
This is only the fourth case concerning transgender equality to be considered by the CJEU (all of which, notably, have emanated from the UK), and the first since 2006 (a case also concerning access to state pension – namely, Richards v Secretary of State for Work and Pensions – but at a time when there was no process by which one’s acquired gender could be recognised in law).
As AG Bobek makes clear in MB in his Opinion delivered on 5th December 2017, the answer to the apparently simple question posed by the Supreme Court can be approached either narrowly or more broadly.
The narrow approach asks whether Directive 79/7 precludes 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 to qualify for a state pension because that is the requirement for full gender recognition under the GRA 2004. The broader approach poses underlying questions about compatibility with the fundamental rights of respect for private life and the right to marry if a Member State refuses to allow for same-sex marriages and, consequently, refuses to recognise gender reassignment if it were to lead to a situation in which two persons of the same sex find themselves in a same-sex marriage, a status which was not permitted in national law until the enactment of the Marriage (Same Sex Couples) Act 2013.
AG Bobek determined the preliminary reference on the narrow approach but also considered the issues thrown up by the broader question.
On the narrow question, the AG concluded that the requirement to be unmarried, applicable only to transgender people in order for them to access a state pension, was discriminatory contrary to Article 4(1) of Directive 79/7.
He pointed out that the case-law of the CJEU had firmly established that the EU law prohibition of discrimination on grounds of sex covers discrimination on the basis of gender reassignment. He also observed that the EU legislature had explicitly recognised this in the recital to Directive 2000/54 (on equal treatment between men and women in employment and occupation).
AG Bobek then batted away the somewhat convoluted argument about comparators advanced on behalf of the Secretary of State of Work and Pensions (SSWP). The argument sought to contest the comparability of trans and cisgender women, maintaining that the former are not in a comparable situation because cisgender women could not (at that time) be married to women, whilst transgender women could find themselves in a de facto same-sex marriage by virtue of gender reassignment. Accordingly, it was argued, the two categories of individual and the conditions attached to them were not properly comparable. This section of the AG’s Opinions makes for interesting reading as employers and service-providers etc often seek to avoid liability for discrimination because of gender reassignment by devising ingenious arguments on comparability. AG Bobek took the view that the relevant comparator group for establishing sex discrimination in relation to gender reassignment will depend on the context of the case. In the present case, he concluded that the appropriate comparator was a cisgender female pensioner, to whom the condition of marriage was not applied and, as such, there was unequal treatment of male-to-female transgender people to their detriment because of their trans status. The SSWP also sought to deny that there had been unequal treatment because cisgender and transgender women alike can benefit from a state retirement pension at the age of 60 and neither (at that time) could be legally married to a woman. As observed by AG Bobek, this confuses unequal treatment in access to a state pension with the issue of the right to marry and ignores the difference between a ban on same-sex marriage with an obligation to annul a previously validly concluded marriage, which was the true condition at issue in the case and the basis for the difference in treatment which had everything to do with trans status. As he stated, “….full legal recognition of gender reassignment is made conditional on civil status. This has a specific and concrete consequence, which matters in this case: for transgender persons only, access to a State retirement pension is tied either to being ‘single’ or to the ending of a marriage.” This requirement to be unmarried creates a difference in treatment directly on grounds of sex and, as such, cannot be justified unless it falls within a permitted derogation within the Directive (which it does not). As such, looking at the issue on the narrow basis, the requirement was contrary to Article 4(1) of Directive 79/7.
AG Bobek then considered the broader arguments in detail because he acknowledged that the narrow assessment did not do “full justice” to the complexities underlying the legal arguments in the case. The SSWP argued that the condition to be “unmarried” was not so much a condition for access to state pension but for obtaining a GRC which is one step removed and independent of the application for a retirement pension. In other words, it was argued, the condition for entitlement to state pension is not to be “unmarried” but, rather, to have been granted a GRC, something which is within the sole competence of member states.
The AG recognised that the case, therefore, invited the CJEU to consider (for the first time) the prohibition of sex discrimination in the context of preconditions set down by national law for the recognition of gender reassignment. He accepted that the national conditions for legal recognition of gender were within the discretion of member states. However, he did not consider that this was conclusive for three reasons: (1) the CJEU had already rejected a similar ‘remoteness’ argument in KB v National Health Service, a case concerning a trans man who could not access a survivor’s pension because he was not married due to the fact that it was impossible for him to marry a person of the sex to which he belonged prior to gender reassignment surgery and a change of legal gender was not possible at that time. The CJEU in KB, therefore, was faced with a situation in which the inequality of treatment did not relate to the entitlement to a survivor’s pension itself, but to a necessary precondition of the grant of such a pension – namely, the capacity to marry. However, that did not prevent the CJEU from concluding that the national law was incompatible with Article 157 of the Treaty on the Functioning of the European Union; (2) the enjoyment of EU law rights could not be made contingent on an unfettered discretion of member states. Whilst conditions for legal gender recognition could regulate both technical issues of a physio/medical/psycho/social nature and also requirements aimed at protecting social values (such as marriage), this did not mean that the discretion in fixing these conditions was entirely unfettered. Unrestrained discretion could run the risk that gender reassignment discrimination, contrary to EU law, could return through the back door “in the form of prerequisites or conditions attached to the recognition of status, no matter what their content”; and (3) the SSWP’s argument failed to recognise that the protection from gender reassignment discrimination applied not only where there was full recognition of acquired gender in law but also in relation to the “trajectory” of getting there. Accordingly, when establishing conditions for legal gender recognition, member states were not entitled to act outside the scope of EU law. AG Bobek commented that there is no “ironclad” rule which dictates the moment at which a trans person becomes entitled to equal treatment under EU law. However, in MB’s case, as the Supreme Court observed, she had already de facto changed gender and satisfied all the physical, social and psychological criteria for recognition of the change of gender, only failing to satisfy the marital criterion. Consequently, neither the power of Member States to define conditions for gender recognition, nor the remoteness of such conditions to entitlement to a state pension could properly lead to a different conclusion than that reached on the narrow question.
Next, the SSWP argued that a finding of incompatibility with Directive 79/7 would compel the UK to recognise same-sex marriages even where such marriages were not (at that time) permitted under national law. AG Bobek gave short shrift to this point, concluding that, from a practical point of view, if the condition to be unmarried contravened Directive 79/7, all that was required would be to make access to state pension independent of that condition. In other words, full legal recognition under the GRA 2004 could require the applicant not to be married whilst nevertheless enabling access to state pension. This, of course, happened in the case of Richards v SSWP, a case concerning access to state pension before the enactment of the GRA 2004, where trans pensioners were entitled to a pension consistent with their acquired gender (even though that gender was not, at that time, otherwise recognised in law).
Finally, the SSWP relied extensively on jurisprudence from the European Court of Human Rights, in particular Hämäläinen v Finland in which the condition to be unmarried, in order to secure full recognition of a gender change, had been declared to be compatible with Article 8 (right for respect to private life) and Article 12 (right to marry) of the European Convention on Human Rights. However, AG Bobek observed that MB’s challenge concerns the prohibition of discrimination on grounds of sex in the field of social security. The right not to be discriminated against is the fundamental right at issue, not the right to marry or the right to family life.
AG Bobek, in a strongly-worded “Coda” made five important concluding remarks:
- This case is not about the right to same-sex marriage. Member states remain free as to whether or not they wish to recognise same-sex marriages.
- The judgment only affects benefits under Directive 79/7 and benefits unrelated to marital status.
- This case concerns a unique situation and the difficulty in fitting gender reassignment discrimination into the traditionally binary divisions on which the prohibition of sex discrimination relies.
- The technical arguments on comparability, relied on by the SSWP, might tend to obscure the profound impact that the requirement to annul one’s marriage in order to secure full gender recognition is likely to have on one’s privacy and personality.
- The case only arose because of the derogation from the equal treatment principle within Directive 79/7, permitting direct discrimination based on sex in respect of pensions. However, in the UK, the retirement ages for men and women are gradually converging, thereby enabling the root of the problem in the case to disappear.
The Opinion of AG Bobek, whilst in the somewhat esoteric framework of trans equality and pensions, is nevertheless important for its observations about the pitfalls of getting too bogged down in arguments about comparability, particularly in the context of gender reassignment discrimination. The Opinion is also notable for its rejection of the SSWP’s argument that the CJEU should not trespass into areas that lie within the competence of Member States. Where the consequences of national laws, which lie within the competence of Member States, breach EU law, then the discretion is not unfettered and must be scrutinised.
MB’s case will now return to the Supreme Court.
Cloisters has been at the forefront of cases concerning LGBT equality, having been involved in many of the leading cases regarding discrimination because of gender reassignment and sexual orientation.