MB v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Hodge,Lady Hale,Lord Toulson,Lord Sumption,Lord Wilson |
| Judgment Date | 10 August 2016 |
| Neutral Citation | [2016] UKSC 53 |
| Date | 10 August 2016 |
| Court | Supreme Court |
[2016] UKSC 53
THE SUPREME COURT
On appeal from: [2014] EWCA Civ 1112
Lady Hale, Deputy President
Lord Wilson
Lord Sumption
Lord Toulson
Lord Hodge
Appellant
Lord Pannick QC Kerry Bretherton QC Christopher Stothers (Instructed by Arnold & Porter)
Respondent
Jason Coppel QC Ben Lask (Instructed by The Government Legal Department)
(with whom Lady Hale, Lord Wilson, Lord Toulson and Lord Hodge agree)
Council Directive 79/7/EEC on the Progressive Implementation of the Principle of Equal Treatment for Men and Women in Matters of Social Security is concerned with state benefits, including old age and retirement pensions. It provides by article 4 that there shall be "no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status …" The material provisions of the Directive have direct effect.
Article 7.1(a) of the Directive provided that it was to be without prejudice to the right of member states to exclude from its scope the determination of pensionable age for the purpose of granting old age and retirement pensions. The United Kingdom has exercised that right. The combined effect of (i) the Social Security Contributions and Benefits Act 1992, section 44, (ii) the definition of "pensionable age" in section 122 of the Act, and (iii) the Pensions Act 1995, Schedule 4, paragraph 1, is that a woman born before 6 April 1950 becomes eligible for the state retirement pension (referred to in the legislation as a "Category A retirement pension") at the age of 60, and a man born before 6 December 1953 becomes eligible at the age of 65. The pensionable age of younger persons will converge over a period of time and will eventually be the same, but these changes do not affect the present appeal.
At the time which is relevant to this appeal, the acquired gender of a transsexual person was not recognised for the purpose of determining the qualifying age for a state pension, if that person was and remained party to a subsisting marriage. The question at issue on this appeal is whether that state of affairs was compatible with the Directive.
Until 2005, the law made no provision for gender reassignment in any of the three jurisdictions of the United Kingdom. A person was for all legal purposes treated as having the gender determined by the application of biological criteria at birth without regard to any psychological characteristics or later surgical intervention. In Goodwin v United Kingdom (2002) 35 EHRR 18, the European Court of Human Rights held that this was incompatible with article 8 of the European Convention on Human Rights and that, so far as it prevented a transsexual from contracting a valid marriage with a person of the same birth gender, it was also incompatible with article 12.
In consequence, Parliament enacted the Gender Recognition Act 2004, which received royal assent on 1 July 2004 and came into force on 4 April 2005. Section 1 of the Act provided that a person could apply to a Gender Recognition Panel for a full gender recognition certificate recording a change of his or her birth gender "on the basis of … living in the other gender". The applicant's new gender was referred to as the "acquired gender".
Sections 2 and 3 of the Gender Recognition Act deal with the criteria for determining whether a change of gender has occurred. Section 2 provides that the Gender Recognition Panel is required to grant the application if the applicant has or has had gender dysphoria, has lived in the acquired gender for at least two years up to the date of the application, intends to live in the acquired gender until death and satisfies the evidential requirements laid down by section 3. Section 3 requires the Panel to be furnished with a report from two medical practitioners or from a medical practitioner and a psychologist. If the Panel concludes having regard to the evidence required by section 3 that the criteria in section 2 are satisfied, it must grant the application.
By section 9 of the Act, where a full certificate is issued, the acquired gender thereafter becomes the person's gender for all purposes. Schedule 5, paragraph 7 of the Gender Recognition Act deals specifically with the effect of a full gender recognition certificate on eligibility for a state pension. It provides that once the certificate has been issued, any question of entitlement to a state retirement pension is to be decided as if the person's gender has always been the acquired gender. Accordingly, where the person was a man immediately before the issue of the certificate but had attained the age at which a woman would have attained pensionable age, she is to be treated as having attained pensionable age upon the issue of the certificate.
At the time that the Gender Recognition Act was passed a valid marriage could subsist in law only between a man and a woman. This had always been the law, but had been confirmed by the Matrimonial Causes Act 1973, section 11(c). For this reason, the 2004 Act made special provision for married applicants, whose change of legally recognised gender would otherwise have resulted in their being married to a person of the same gender as themselves. This will be referred to below as the "marriage condition". By section 4(2) an unmarried applicant who satisfied the criteria for gender recognition in sections 2 and 3 was entitled to a full gender recognition certificate, whereas by section 4(3) a married applicant who satisfied the same criteria was entitled only to an interim gender recognition certificate.
Unlike a final gender recognition certificate, an interim gender recognition certificate did not itself effect any change in the applicant's legally recognised gender. It merely entitled a married applicant to apply to have the marriage annulled by a court. The Matrimonial Causes Act 1973 (as amended), section 12(g), provided that upon the issue of an interim gender recognition certificate the applicant's marriage became voidable. By section 13(2A) of the same Act, the court was then bound to grant a decree of nullity, provided that proceedings to...
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