A piece just published online by The Times:
British officials discriminated against a transgender woman who was refused the female state pension because she wished to remain married “in the sight of God”, judges ruled today.
The ruling from the European Court of Justice, which potentially affects dozens of other trans women, follows a Supreme Court hearing in 2016 on a case brought by MB, then 68, who had transitioned from male to female but chose as a Christian to stay married. That decision blocked her entitlement to a state pension when she reached 60.
Under the 2004 Gender Recognition Act, trans people acquire the right to change their gender formally by obtaining a full “gender recognition certificate”. However, a certificate could not be issued to a married person who did not have their heterosexual marriage annulled.
The Court of Justice of the European Union (European Court of Justice) in Luxembourg ruled that a person who has changed gender cannot be required to annul their marriage in order to receive a retirement pension at the relevant age of their acquired sex.
MB, who married in 1974, began to live as a woman in 1991 and underwent gender reassignment surgery in 1995 but did not apply for a gender recognition certificate.
She says that she preferred to stay married to her wife and the mother of their two children “in the sight of God”.
When she reached her 60th birthday in May 2008 — having lived as a woman since 1991 and undergone gender reassignment surgery in 1995 — MB applied for a state pension but was refused on the basis that she was legally still a man and should therefore wait for the male pension at 65.
MB lost her case at the Court of Appeal in 2014, when judges upheld a decision by the Department for Work and Pensions (DWP) to refuse her a female pension on the basis that she remained legally a man. She then appealed to the Supreme Court, which referred the case to Europe for guidance.
The lawyers who acted for MB pro bono, Jacqueline Mulryne of Arnold & Porter and Chris Stothers of Freshfields Bruckhaus Deringer, said: “We are delighted with today’s judgment, which vindicates our client’s determination to challenge the unlawful and discriminatory decision of the UK government to refuse to recognise her change of gender or to pay her state pension.
“After almost a decade, MB will finally be paid her pension and recognised as a woman by the government. This is a small decision but it has great importance in the move towards increased equality and respect.
“The court rightly recognised that the DWP’s treatment of our client, in requiring annulment of her marriage before recognising her gender and paying her pension, was directly discriminatory and could not be distinguished by the desire to avoid same-sex marriage.”
“The case now returns to the Supreme Court to apply the ruling, although we are hopeful that the DWP will apply the ruling and recognise our client’s gender without any further delay.”
Lord Pannick QC, who acted for MB, said that he was delighted for her, adding that “the judgment is of importance in emphasising that less favourable treatment of those who have undergone gender reassignment will be treated by courts as a form of direct sex discrimination”.
The case went to Europe after MB asked the Supreme Court in London to overturn the Court of Appeal decision. The justices, Baroness Hale, with Lords Wilson, Sumption, Toulson and Hodge, were divided and referred the issue to the Court of Justice of the European Union for guidance.
Under the Marriage (Same Sex Couples) Act 2013, which came into full force in December 2014, a full gender-recognition certificate can be obtained without a marriage having to be annulled, providing that the applicant’s spouse consents. The provisions are not retrospective, however, which is why MB was denied a pension from the age of 60.
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