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Chambers & Partners
12/08/2016

Another transgender case heading for the European Court….

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In the 1990’s a series of European Cases set UK law on the rights of transgender individuals on the path that led to the protections they now enjoy as one of the 9 protected characteristics under the Equality Act 2010 and the special provisions in the Gender Recognition Act.  But do those protections properly implement European law?

Certainly ‘MB’, a trans-woman, does not think so, and in the case of MB v Secretary of State for Work and Pensions [2016] UKSC 53 is challenging the UK’s failure to pay her a female state pension when she reached the age of 60.  She is now 68 and has been receiving a pension since 65, the male qualifying age.

But it is a bit more complex than that.  She transitioned as long ago as 1991 and if she had obtained a gender recognition certificate as provided for under the Gender Recognition Act, she would have been recognised as female and received her pension at 60.  However, she did not want to do that because she has remained married to the woman she married 38 years ago when still a man.  Her religious convictions are such that she did not want to convert that marriage into a civil partnership as she would have been required to do by the gender recognition process.  Same-sex marriage was not then allowed, and to allow ‘MB’ to remain married but be recognised ‘for all purposes’ as a woman would have provided a ‘back door’ into same sex marriage.

On one level, this case is of historical interest only, in that we now have equal pensions for men and women, and the coming of same-sex marriage in the UK 2014 has removed the bar that ‘MB’ faced.

However, this case explores deeper questions about how effectively the Gender Recognition Act enacted the relevant European Rights, and how he clash of religious or other personal rights and trans rights are resolved.  A further layer now, of course, is that this case concerns the implementation by the UK of rights flowing from a European Union Directive, and the supremacy of the European Court.  The UK is also considering changes to the law related to transgender individuals following a report by the Women and Equalities Committee of the House of Commons published at the turn of the year.

Certainly the answer in the present case was not sufficiently clear to the UK Supreme Court to determine and on 10 August 2016 their Lordships referred a question on whether the restriction on being married preventing the recognition of MB’s affirmed gender was compatible with EU Directive 97/7/EEC to the Court of Justice of the European Union.

One to watch…….

 

Robin Moira White

Please click here to see the Supreme Court Judgment

transgender, european court, robin white, equal pay, equal rights, equal pensions

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