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Links to documents:
Access this URL (http://1exagu1grkmq3k572418odoooym.wpengine.netdna-cdn.com/wp-content/uploads/2014/08/MB-v-Secretary-of-State-for-Work-and-Pensions.pdf)Judgment Approved by the court for handing down[Link to copy hosted by Monckton Chambers]
Download this file (MB-v-Secretary-of-State-for-Work-and-Pensions.pdf)Judgment Approved by the court for handing down[Archive copy hosted by UK Trans Info]
Access this URL (http://www.monckton.com/wp-content/uploads/2014/03/MB-v-Dept-for-Work-and-Pensions-Judgment.pdf)Original tribunal decision that is being appealed[Link to copy hosted by Monckton Chambers]
Download this file (MB-v-Dept-for-Work-and-Pensions-Judgment.pdf)Original tribunal decision that is being appealed[Archive copy hosted by UK Trans Info]

Brief Summary

Court of Appeal judgment from Lord Justice Underhill dealing with a trans woman wanting to claim state pension at age 60. This case deals with situations that arose after the Gender Recognition Act came into force.

Extract from Judgment

  1. The situation which gives rise to this appeal can be summarised as follows:
    1. The Appellant is a male-to-female transsexual. She was born on 31 May 1948. In 1974, while she was still a man, she married a woman with whom she still lives. They have two daughters. She began to live as a woman in 1991 and underwent gender reassignment surgery in 1995.
    2. With effect from the coming into force of the relevant provisions of the Gender Recognition Act 20042 on 4 April 2005, the Appellant has had the right to apply for a “full gender recognition certificate”. Section 9 (1) of the Act provides that “where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender”. However a full certificate cannot be issued to a person who is married (see section 4 (2) and (3)). A married person who has had their gender reassigned is entitled to have the marriage annulled on that basis (see Schedule 2 of the Act, adding gender reassignment to the grounds of voidability under section 12 of the Matrimonial Causes Act 1973); but unless and until they do so their change of gender will not be recognised. The effect of these provisions is common ground and I need not set out their full terms.
    3. The Appellant does not wish to have her marriage annulled. She and her wife have lived as a married couple for 38 years and do not wish to change. Also, as a Christian she says that she and her wife feel married in the sight of God. Accordingly she has not applied for a gender recognition certificate, and so far as the law is concerned she remains a man.
    4. On 31 May 2008 the Appellant became 60. She applied for a state pension on the ground that she had reached what was then the pensionable age for a woman. The application was refused on the basis that she was a man and was accordingly not entitled to a pension until the age of 65. The provisions governing pensionable age for men and women are sections 44 and 122 of the Social Security Contributions and Benefits Act 1992 (section 122 incorporating the definition of pensionable age in para. 1 of Schedule 4 to the Pensions Act 1995). Again, their effect is common ground and I need not set them out in full.
  2. It is the Appellant’s case that that refusal was unlawful because it was contrary to the principle of equal treatment in the field of social security enshrined in Council Directive 79/7/EEC (“the Social Security Directive”) and/or because it constituted unlawful discrimination under the Equality Act 2010. She does not advance any claim under the Human Rights Act 1998. Once the relevant provisions of schedule 5 of the Marriage (Same Sex Couples) Act 2013 come into force she will be able to obtain a full gender recognition certificate without having to have her marriage annulled (provided that her wife consents); but those provisions are not retrospective and will not therefore give her any right to a pension from age 60. 
  3. The Appellant appealed to the First-Tier Tribunal against the initial decision of the Secretary of State. Her appeal was heard by Judge Daly, sitting in Oxford, on 18 November 2009. By a reserved judgment dated 6 January 2010 her appeal was dismissed. She did not appeal at the time; but she was subsequently given permission to appeal to the Upper Tribunal. By a reserved judgment issued on 31 July 2013 ([2013] UKUT 290 (AAC)) Upper Tribunal Judge Wright dismissed the appeal. Lewison LJ gave permission to appeal to this Court on 10 January 2014. He also granted an application for anonymity.
  4. The Appellant has been represented before us by Ms Kerry Bretherton and Dr Christopher Stothers, acting pro bono, and the Secretary of State by Mr Ben Lask. Both counsel also appeared before the Upper Tribunal.

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