Unlocking Gender Recognition: Supreme Court refers question about transgender pension claimants to European Court of Justice

Since 2004, it has been possible for individuals with gender dysphoria fulfilling certain criteria to apply to a Gender Recognition Panel for a certificate confirming that, for all legal and official purposes, they should be treated by the law as their acquired gender.

However, it is not possible for transgender people in opposite-sex marriages formed before 2013 to receive a full Gender Recognition Certificate until, and unless, they annul their marriage. This leaves a substantial number of transgender people who, unwilling to annul a perfectly happy marriage, are effectively ‘locked in’ to their birth gender and left unable to obtain official recognition of their acquired gender.

In a recent case, MB v Secretary of State for Work and Pensions [2016] UKSC 53, a transgender woman appealed to the Supreme Court against a decision by the Department for Work and Pensions, and later the social security tribunal, that she is only entitled to her state retirement pension at the age of 65 as if she were a man, simply because she is unwilling to annul her marriage to her wife. The Court has identified this as an issue they cannot answer and have referred the matter to the European Court of Justice for a ruling on whether the Department for Work and Pensions’ position is legally justifiable.

A ruling favourable to MB may force the government to take steps to amend the law so that annulling an opposite-sex marriage formed before 2013 is not a requirement to obtain a full Gender Recognition Certificate, which would unlock gender recognition for transgender people currently faced with a needlessly difficult choice between their marriage and their Gender Recognition Certificate.

If you would like to speak to our family and divorce team surrounding any of the matters highlighted in the article, or for any other issues related to Family & Divorce, please contact Jolene Hutchinson, Partner and Head of Family and Divorce, on 01494 478 603 or email jfh@blasermills.co.uk