The appellant, a male to female transsexual, had remained married to her wife despite having the right to have the marriage annulled following the 2004 Act. She now appealed against rejection of her claim to a state pension on attaining the age of 60. She had not applied for a Gender Recognition Certificate because she did not wish her marriage to be brought to an end. She relied on the Social Security Directive and on the jurisprudence in the European Court of Justice.
Held: Underhill L J said: ‘The starting-point in considering such a case is that in Richards the ECJ said in terms, at para. 21 of its judgment (p.1195C), that ‘it is for the member states to determine the conditions under which legal recognition is given to the change of gender of a person’. But I accept that it is not possible to stop there. The Court clearly did not intend that member states should have carte blanche: that would be clear as a matter of principle, but the point is in any event made explicitly at para. 103 of the judgment of the Strasbourg Court in Goodwin v United Kingdom [2002] IRLR 664 which is the ultimate source6 of the statement which I have quoted. If the conditions in question were such as to place unjustifiable restrictions on the right to have the acquired gender recognised the Court would no doubt hold that they were unlawfully discriminatory. The question in the present case is whether the requirement in section 4 of the Act that any subsisting marriage be annulled prior to the issue of a full gender reassignment certificate is unjustifiable.’
Maurice Kay VP CA, Aikens, Underhill LJJ
[2014] EWCA Civ 1112, [2014] WLR(D) 355, [2014] ICR 1129
Bailii, WLRD
Gender Recognition Act 2004, Marriage (Same Sex Couples) Act 2013, Council Directive 79/7/EEC, Equality Act 2010
England and Wales
Cited by:
Cited – Carpenter v The Secretary of State for Justice Admn 27-Feb-2015
The claimant, a post-operative male-to-female transsexual person, said that section 3(3) of the 2004 Act was incompatible with her Human rights after refusal of a gender recognition certificate.
Held: The application failed. The provision of . .
At CA – MB v Secretary of State for Work and Pensions SC 5-Jul-2016
The court was asked about the age at which entitlement to a pension began for someone of transgender.
Held: The court was divided, and the issue was referred to the European Court of Justice. . .
Lists of cited by and citing cases may be incomplete.
Benefits, Discrimination, European
Updated: 18 December 2021; Ref: scu.535453