Tuesday, 24 July 2018

Gender Reassignment and Pension Entitlement: Discrimination will not be tolerated

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.



Wednesday, 24 January 2018

Parental Responsibility: How you get it. How you lose it.

Parental responsibility (PR) is a fundamental concept in UK family law. It is defined in Section 3(1) of the Children Act 1989 (the Act) as:
all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”.
Just because you are the biological parent of a child does not necessarily mean that you will have PR. This is particularly important for unmarried fathers who need to ensure that they are included on the birth certificate for their child when the birth is registered or else they will subsequently need to take administrative or legal steps to obtain PR. Further details are set out below.
This post is going to look at how PR is obtained and how it can be lost or restricted with consideration of the recent case of B and C (Change of Names– Parental Responsibility – Evidence) [2017] EWHC 3250 (Fam). A link to the Act is here which may be helpful as there are several references to specific clauses.

Obtaining Parental Responsibility

Section 2 of the Act set out how PR is obtained automatically. If a mother and father were married at the time of their child’s birth then both obtain PR automatically under section 2(1). Section 2(1A) contains similar provisions for when both parents will automatically have PR when a child is conceived through artificial insemination or IVF treatment. If the mother and father were not married, or the criteria for the other parent in section 2(1A) are not met, then only the mother will have PR automatically (section 2(2)(a)).
The father may obtain PR under section 4(1) of the Act by either:
a)     being named as the father on the birth certificate;
b)    by entering into a “parent responsibility agreement” with the mother; or
c)     by order of the court on his application.
Sections 4A and 4ZA contain similar provision on how people who are not the father, such as a second female parent or step-parent can obtain PR.
I have set out the legislative framework above as there is an interesting difference in the approach to those parents who obtain PR automatically under section 2 of the Act, and those who obtain it under the provisions in sections 4, 4ZA and 4A. This is relevant in the rare circumstances where PR may be withdrawn or restricted.

Restricting Parental Responsibility

Ordinarily, a child will benefit from both parents having and exercising their PR. Withdrawing or restricting PR is a significant and draconian step that will only be considered in the most extreme circumstances to protect the child.
A parent who has obtained PR automatically under section 2 of the Act can never have that it taken away from them but they can have it restricted, either in part or completely. Completely restricting PR could effectively achieve the same result as having it withdrawn.  In order to restrict someone’s PR in this way an application must be made for a prohibited steps order (a PSO) under section 8 of the Act. A PSO is defined in Section 8(1) of the Act as being:
an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order shall be taken by any person without the consent of the court
Applications made under Section 8 of the Act require the Court must apply the ‘welfare checklist’ set out in Section 1(3) of the Act.
In the circumstances mentioned in subsection (4), a court shall have regard in particular to—
a)     the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
b)     his physical, emotional and educational needs;
c)     the likely effect on him of any change in his circumstances;
d)     his age, sex, background and any characteristics of his which the court considers relevant;
e)     any harm which he has suffered or is at risk of suffering;
f)      how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
g)     the range of powers available to the court under this Act in the proceedings in question.”
A parent who has obtained PR through sections 4, 4ZA or 4A can have it restricted by a PSO but can also have it withdrawn completely. An application to withdraw PR is made under the relevant subsection in the Act. It is not an application made under section 8 and so the Court is not obliged to apply to welfare checklist.
The consequence of this is that the Courts may be required to take a different approach to what is essentially the same question depending on how the PR was obtained in the first place.

Does it matter?

This could be relevant when comparing an application to restrict PR completely when that PR has been obtained automatically, and an application to withdraw PR which has been otherwise obtained. The former arose in the case of B and C. The mother argued that the father posed such a threat to the children that he should play no part in their lives. He had, among other things, abducted the children to Southern Iran, excluding their mother from their lives and subjected them to physical abuse. The mother had to effect a risky rescue of the children to return them to England. The father had obtained PR automatically under section 2(1) of the Act.
In addition to the application for PR to be restricted under section 8, the mother applied for the children’s names to be changed completely and for her evidence to be withheld from the father as it contained details about where she and the children were living. All three such applications are highly unusual in children proceedings and would be considered an interference with the ECHR Article 8 right to private and family life. Notwithstanding this, the Court applied the welfare checklist as it was required to do and found that the circumstance were such to justify the applications and found in the mother’s favour on all points.
In considering the mother’s request to restrict PR, Mister Justice Cobb, considered the case of Re D (Withdrawal of Parental Responsibility) 2014EWCA Civ 315. In contrast to B and C, this case involved an application to remove PR completely (so not a section 8 application).  In his judgment, Cobb J set out twelve principles to be drawn from Re D. This included:
iv)That there was is no requirement upon the court to consider the factors set out in section 1(3)(the ‘welfare checklist’) but the court is not prevented from doing so and may find it helpful to use an analytical framework not least because welfare has to be considered and reasoned.
This suggests that, even where the welfare checklist does not apply, it is likely to have an influence on how the case is decided.  Arguably then, there will be little difference in how the court approaches the question of withdrawing PR or restricting it completely. However, as the Court is not bound to take the welfare checklist into account in applications for removal of PR, it would be prudent to give consideration as to what weight if any should be given to it in those circumstances. Should this be the case though? This leaves us with a situation where a different test will apply depending on the nature of the relationship between the parents and not the relationship between the parent and the child.