Court of Appeal rules on transsexual’s pension rights under EC law

28 June 2010 by

Christine Timbrell v Secretary of State for Work and Pensions [2010] EWCA Civ 701 22 June 2010

A person who had acquired a different gender was entitled under European law to obtain the legal rights, such as an earlier pension, associated with the acquired gender – read judgment

The appellant had undergone male to female reassignment surgery. In 2002 she applied for a state pension, to be backdated to her sixtieth birthday. The Secretary of State decided that she was only entitled to a state pension from her 65th birthday. On appeal to the tribunal it was found that she had not obtained a full gender recognition certificate under the Gender Recognition Act 2004 (“the GRA”)  and therefore she was not entitled to legal recognition of her new gender. As a consequence she could not qualify for a state pension from the age of 60. Prior to the Act, the United Kingdom had failed to implement Equal Treatment Directive 79/7/EEC to ensure that any national laws, contrary to the principle of equal treatment, were abolished. The Upper Tribunal rejected her appeal finding that she did not satisfy the criteria to be treated as a woman which could entitle her to receive a pension at the age of 60 under Council Directive 79/7.

The issues before the Court of Appeal were (1) whether the appellant’s rights to a retirement pension should be considered without recourse to the provisions of the GRA (2) if so, what would be the effect of Directive 79/7 as interpreted by the Richards case (see below) (3) If Directive 79/7 applied to the facts of this case and it was held that the UK legislation and case law (prior to the GRA) is discriminatory with regard to acquired gender and pension entitlement, what would be the consequence for the appellant’s claim to a pension from her 60th birthday.

Held:

Appeal allowed. The provisions of the GRA were not retrospective and therefore the appellant’s entitlement between 2002 and 2005 had to be judged on the basis of the law applicable at that time.

Prior to the GRA it was impossible for a person who had acquired a different gender to obtain the legal rights associated with the acquired gender, a principle established by Bellinger v Bellinger (2003) UKHL 21. In that case the House of Lords had unanimously concluded that Mrs Bellinger, a transsexual female who had been born and registered as a male at birth, could not validly contract a marriage with another male.

So prior to the GRA it was necessary to take a person’s gender as assigned at birth to determine that person’s gender so as to decide when that person attained ‘pensionable age” for the purposes of pension legislation. This meant that the appellant had to be regarded as a “man” in order to decide when she reached “pensionable age” for the purposes of the pensions legislation.

In Goodwin v United Kingdom (2002)  the Strasbourg Court held that this inability of the English law to recognise and give effect to a change of gender through gender re-assignment surgery was a violation of a person’s Article 8 rights. And in 2006 the ECJ ruled in the case of  Richards v Secretary of State for Work and Pensions (C423/04) (2006) All ER (EC) 895 ECJ that the correct interpretation of Articles 4 and 7 of Directive 79/7/EC meant that the refusal of a retirement pension to a male to female transsexual until the age of 65 was prohibited if that person would have been entitled to such a pension at the age of 60 had she been held to be a woman as a matter of national law. In other words, this ruling meant that the scope of Directive 79/7 is not confined to discrimination based on the fact that a person is of one or other sex. Its scope is broader. The ECJ held that:

In view of the rights which it seeks to safeguard, the scope of that directive is such as to apply to discrimination arising from the gender re-assignment of the person concerned.

Accordingly, the UK had failed, within the time allowed, to take the necessary measures to implement the Directive to ensure that any national laws that were contrary to the principle of equal treatment as defined in art.4(1) were abolished. The obligations set out in Articles 4(1) and 5 were in precise and unequivocal terms. By virtue of Article 4 the Secretary of State was obliged to recognise that the appellant had a right by virtue of her acquired gender to a retirement pension from her 60th birthday. Accordingly, the Upper Tribunal erred in its decision.

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