The law in England & Wales on marriage, relationships, sexual orientation and gender recognition has changed dramatically in the last 50 years. This has included the decriminalisation of homosexuality in 1967 through to more recent changes brought about by the Gender Recognition Act 2005, the Civil Partnership Act 2003 and the Marriage (Same Sex Couples) Act 2013. Each step has been a move away from discrimination towards equality for those in the LGBTQ community.
The law is complex, and these changes have required careful consideration of, and amendments to, previous legislation to ensure that they are effective and avoid further and unintentional discrimination. Some of these amendments were considered in previous posts in relation to the legalisation of same sex marriage and whether same sex couples should be granted access to civil partnerships.
A person’s gender affects many aspects of their legal life. One area which has come under particular scrutiny recently is that of pension entitlement. The UK has, for some time, been moving towards a system in which the pension age for both men and women will be the same. This should be the case by the end of this year and the pension ages will then increase the for both sexes in future years.
Under European law, specifically Article 4 of Council Directive 79/7/EEC on the Progressive Implementation of the Principle of Equal Treatment for Men and Women in Matter of Social Security, a Member State cannot discriminate whatsoever on the ground of sex. There is an optional exemption to this when it comes to determining pension age and the UK has chosen to apply this exemption. It is therefore legal, under European law, for the UK to allow there to be a different pension age for men and women although, as stated above, this is being phased out.
The Court Justice of the European Union (CoJ) has recently considered this issue in detail. A claim was brought against the Secretary of State for Work and Pensions in 2008 by a person, referred to as MB, who had been born a man but now claimed to be a woman.
Further details of the case are set out below but first, a word on Gender Dysmorphia.
“This is a condition where a person experiences discomfort or distress because there's a mismatch between their biological sex and gender identity. It's sometimes known as gender incongruence.
Biological sex is assigned at birth, depending on the appearance of the genitals. Gender identity is the gender that a person "identifies" with or feels themselves to be.”
Definition taken from https://www.nhs.uk/conditions/gender-dysphoria/
MB was born a man in 1948, married a woman in 1978, lived as a woman from 1991 and underwent gender reassignment surgery in 1995. As far as she was concerned she was female, as far as the law was concerned she remained male. It was not an option for her to legally become female until the Gender Recognition Act 2005 came into force. Even then, legal gender reassignment is not automatic. Criteria have to be met including having undergone reassignment surgery, having lived as their identifying gender for a number of years and providing supportive medical evidence. Only if these criteria were met would a Certificate of Gender Reassignments (CGR) be issued. The CGR was essential for there to be a legal change of gender. MB could have opted to legally become a woman in 2005 but, at that time, marriage between same sex couples was not permitted.
Prior to same sex marriage becoming legal in 2014, a married person who met the criteria for a CGR had the following options:
a. Remain married, in which case their legal gender would remain the same as at birth; or
b. Obtain an Interim CGR. This would entitle them to have their marriage annulled. They could then either enter into a civil partnership with their former spouse, remain single or re-marry another person of the opposite sex.
MB did not want to get an annulment because this conflicted with her religious beliefs. She therefore remained married and, as far as the law was concerned, a man.
The issue came to light when MB applied for her pension entitlement at aged 60. Being born before 1950, this was the age she would have been entitled to receive her state pension benefit, if she was a woman. A man born before 1950 could not claim until he is 65. Section 9 of the Gender Recognition Act 2005 makes it clear that once the CGR has been granted that person has changed gender for all purposes. This includes claiming pension benefits. Without a CGR, MB’s application was rejected. As far as the law was concerned, she was still a man and so would have to wait until she was 65.
MB challenged this on the basis that she was being directly discriminated against on the grounds of sex. To establish discrimination, one must identify a comparable person and show that you have been treated differently. The comparable person was a married woman who had been born a woman. Her case slowly progressed through the UK Court system taking 8 years to make it to the UK Supreme Court. The Supreme Court was divided and referred the case to the Court of Justice of the European Union. Their decision can be found here. A further 2 years later, and a staggering 10 years after her claim began, the CoJ ruled in her favour declaring that there was direct discrimination. The press release for the decision can be found here.
The second element of MB’s claim was that there was indirect discrimination as the vast majority of gender reassignment surgery is male to female. Whilst she was not successful in establishing indirect discrimination the case may raise the possibility of further claims being made by those who either missed out on their state pensions at an earlier age or who had to annul their marriages to obtain their pension benefits.
In another recent case involving transgender rights, the claimant had undergone the transition from female to male and had obtained a CGR recognising his male gender legally. He had then given birth and is now fighting for his right to be recorded as “father” on the child’s birth certificate. As stated above, section 9 of the Gender Recognition Act 2005, it makes it clear that gender reassignment is for all legal purposes. There is no qualification for such scenarios and yet the General Register Office say they cannot put anything other than “mother” on the birth certificate when referring to the person who has given birth to the child. This intriguing problem is generating considerable debate.
It is not possible for those making the law to consider every possible scenario when drafting legislative change and we may well see other cases where the changes to this area of law lead to discrimination. What is important is that when such issues do arise, they are dealt with appropriately and, if the recent CoJ decision is anything to go by, any form of discrimination is unlikely to be acceptable.