Despite having voted to leave the EU on the 24th June of this year, the UK exit will take several years to negotiate. Consequently, for the time being decisions made by the EU’s highest courts still take precedence over those made by courts within the UK.
In the UK, women are entitled to a state pension when they reach the age of 60. For men, the age is 65.
What complicates the case of ‘MB’ – as the plaintiff in this case is known – is that she married her wife before transitioning from male to female, at a time considerably before same-sex marriage was legal, and before trans people had the legal right to change their gender.
According to the BBC News article, the couple were married in 1974 and MB began living as a woman in 1991. She underwent gender reassignment surgery in 1995.
Yet it only became possible for trans people to change their gender officially with the passing of the Gender Recognition Act in 2004, when they were allowed to acquire a so-called “gender recognition certificate.”
Even so – and this is the crucial point in MB’s case – this law was passed ten years before same-sex marriage was legalised, and at the time it was not possible for people who were married to obtain a certificate if they did not have their marriage annulled as a result of their transition.
MB, who had two children with her spouse, wished to remain married “in the sight of God,” and did not apply for a gender recognition certificate, the BBC News article reports.
Consequently, when she turned 60 in May 2008, she is said to have applied for a state pension, but to have been refused by the Department of Work and Pensions (DWP) on the grounds that legally she was still a man, and would therefore have to wait until she turned 65.
This DWP decision was upheld by judges at the Court of Appeal in 2014, although some sympathy was expressed for MB’s situation. Lord Justice Maurice Kay described her as the victim of “a real misfortune” and noted that legal developments had come “too late for her to benefit from them.”
MB has subsequently requested the Supreme Court Justice overturn the lower court’s decision. Her legal representative, Christopher Stothers from the law firm Arnold & Porter, has argued that by relying on domestic UK law, the DWP’s decision contravened EU laws.
According to an article by the Thomson Reuters Foundation (TRF), MB’s representatives argued that the decision by the DWP “breached an EU directive on the equal treatment of men and women in matters of social security.”
The Supreme Court then issued a ruling, in which it stated that, “”The Supreme Court is divided on the question, and in the absence of Court of Justice authority directly in point, considers that it cannot finally resolve the appeal without a reference to the Court of Justice.”
Meanwhile BBC News quotes Stothers as saying, “This issue is a matter of principle as well as having financial consequences for pensioners.”
“Where an individual is physically, socially and psychologically a woman, as recognised by the state in their passport and driving licence, and indeed surgically, why should they be required – before the state will recognise their gender for pension purposes – to get divorced or have their marriage annulled, particularly where they and their spouse do not wish to do so and indeed have religious objections to doing so?”
Stothers added that, “although we are pleased with the result, the slowness in getting the issue resolved is highly frustrating for the pensioners involved.”
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