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.
