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.

 

 

 

 

Divorcing After Decades: Why are the over 60s so keen to untie the knot?

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Time to read: 2 minutes

The Office of National Statistics has recently released data that shows that divorce among the over 60s is on the rise.  This has sparked a great deal of debate surrounding the underlying reasons for this trend. Suggestions include increased life expectancy, the lack of stigma associated with being divorced and people (men in particular) having their midlife crisis later in life once the children have left the nest.

There is potentially another aspect of modern living which could be contributing to the growing number of the 60+ generation who are willing to call it a day on marriages. Thirty years ago, when these so called “silver splitters'” parents were in the 60+ bracket few homes had a computer, there were only four channels on the television and if you wanted to stay in touch with old friends you had to either put pen to paper or pick up your (home) phone or take a handful of change to a local phone box. Today social media is everywhere and our scope for interaction with people and information has increased exponentially over the last few decades whether through computers, television or mobile phones. This has made connecting with long lost school chums or old girlfriends/boyfriends much easier and the 60+ generation is no exception. After all, who hasn’t run into their parents on Facebook! Online dating is also more accessible and socially acceptable than ever before and there are many websites dedicated to finding love for the older/post-retirement generation. Thanks to the online revolution, becoming single again in one's 60s may not be as daunting or lonely a prospect as it used to be.

Whilst it is important to remember that each divorce will turn on its own facts, couples who have reached, or are approaching, retirement will often have different priorities to those who are divorcing in their 30s or 40s. The children are likely to have grown up and will have completed their education and the parties will be at or near the end of their working lives and will most likely be looking to pensions for their income.  After so many years of financial interdependence, providing each party with adequate means to live financially independent lives may be difficult to achieve, particularly where one party has been out of the workforce for several decades and has no scope for developing any earning capacity or contributing further to a pension. Perhaps then, those silver splitters wanting to re-establish their independence or start a new relationship following their divorce might find it more difficult to achieve the financial independence to go with their new found single status.