Trans Pensions

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The precise legal status of pensions rights are often misrepresented by trans activists and they are not very keen to be corrected on what the law actually states. For example there was an article by Jane Fae on a pensions case that is being referred to the European Court of Justice to clarify if the United Kingdom law breached any European Union treaties. Guardian authors have the ability to delete unwelcome challenges in the comments and either she or a moderator deleted the following for apparently breaching community standards.

The Marriage Act (Same Sex Couples) discriminated in favour of trans people, not against them. The inequality with straight marriage over pensions is hinted at in the article then goes onto spousal veto (aka having a legal right to determine your own marriage status as advocated by the leading trans legal authority Prof Stephen Whittle). The inequality is for same sex surviving partners not having the same pension rights as opposite sex partners unless one of the partners has legally changed gender.< /p>

Those saying the the DWP is not discriminating but applying the law are correct. A government department applies government policy, which includes the law as it currently stands. Retrospective treatment is impossible unless and until that is written into current law.< /p>

The key anti trans discrimination that Fae hints at but does not address is that MB's case is calling for a discrimination between different categories of trans people. Those who did not have religious scruples and ended a marriage and then entered a civil partnership suffered a pension penalty and as she notes converting that civil partnership to a marriage will not see the pension penalty removed. This is not the fault of the DWP, but pension companies lobbying government. If MB gets her pension because her conservative take on religion got in the way of her taking a pension penalty in the past then she will have a stronger pension history than a more liberal religious person who ended their marriage and entered a civil partnership.< /p>

Fae has in the comments asserted that as this will affect very few people MB should win the case (if ECJ rules in her favour before Brexit happens). The problem is that this is not how law works. It will not only affect the few whose religious scruples preventing taking a full GRC to access an earlier pension. It will introduce a whole serious of domino effects on other aspects of law, including a basic breach of the certainty granted to citizens through the security of knowing that laws are not applied retrospectively, unless it is discovered that the law was in breach of European Union treaties, which brings in the ECJ and is nothing to do with a supposedly discriminatory DWP.< /p>

So thanks to an over sensitivity on behalf of The Guardian I shall revert to my original intention to write an article on the subject, but this is not going to be a blow by blow rebuttal of Fae's points. Instead I will address the issue of the case that provoked Fae's article. That case concerns a long running legal battle over the rights of a trans woman, known only as MB, to retrospectively claim the pension rights that she declined to claim because it would require ending her marriage, which contravened her religious conscience. The case then rests on a conflict of protected rights, between transgender equality and religious equality, but with the added complication that if MB is successful she would end up with greater pension rights than someone with a more liberal stance on the indissolubility of marriage who made the legally required change in order for a trans woman to qualify for a state pension at the female age. In 2014 the Court of Appeal upheld the decision of the DWP (Department of Work and Pensions) to reject MB's pension claim in 2008 on the grounds that the law only permitted a claim for a female age pension to a trans woman who had obtained a GRC (gender recognition certificate), which had been available since the Gender Recognition Act 2004. MB had not applied for one on the grounds that until 2013 the Gender Recognition Act required a married person to divorce as same sex marriages were not permitted under English and Welsh law until the Marriage (Same Sex Couples) Act 2013 and as a Christian she not want to divorce her wife and enter a same sex civil partnership with her. MB had appealed the DWP decision in 2014 and sought the pension from age 60 on the grounds that the 2013 change would give her that right if she was to turn 60 after 2013. The Court of Appeal ruled that there was no retrospective rights entailed in the 2013 changes and therefore MB was not entitled to pension payments since 2008.

MB appealed to the Supreme Court on the basis that the DWP relying purely on national law was in contravention of European Union law. The Supreme Court was split on the matter and as there was no prior judgements on the issue from the European Court of Justice they referred the case to that European Union court for guidance. They are asking the ECJ:

The question referred is whether Council Directive 79/7 EEC precludes the imposition in national law of a requirement that, in addition to satisfying the physical, social and psychological criteria for recognising a change of gender, a person who has changed gender must also be unmarried in order to qualify for a state retirement pension.

It may seem strange that the Supreme Court would ask the ECJ to rule on whether criteria for gender recognition could require someone to be unmarried when the Gender Recognition Act makes no such stipulation. It arises from a key part of MB's appeal to the Supreme Court claim that:

(3) Since the holder of an interim gender recognition certificate must have satisfied the physical and psychological criteria for gender recognition, the imposition of a further condition for obtaining a full certificate which applies to married applicants only constitutes unlawful discrimination.
(4) Even if it were legitimate to impose the marriage condition for the purpose of protecting the status of marriage as a relationship between a man and a woman, that could not justify imposing the same condition on eligibility for a state retirement pension, to which marital status is likewise irrelevant.

Despite the religious basis of MB's refusal to claim a Gender Recognition Certificate her appeal to the Supreme Court did not introduce the conflict between the protected areas of gender reassignment and religion. She did make a claim under the protected right of gender equality on the dubious grounds that more trans people reassign their gender from male to female than from female to male. The Secretary of State for Work and Pensions rejected MB's points including the notion that indirect discrimination was taking place. The Supreme Court took no decision on any of the other claims, because they could not agree on this point about marriage that they have referred to the ECJ. The Supreme Court's indecision is well founded as the EEC directive they cite is very unclear on the relationship between marital status and pension rights. Article 4 paragraph 1 of that directive sets out that:

Article 4
1. The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:
- the scope of the schemes and the conditions of access thereto,
- the obligation to contribute and the calculation of contributions,
- the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits.

That article clearly rules out discrimination on the ground of sex including in relation to marital status. What it does not do is rule discrimination on the grounds of marital status in and of itself. MB's case is that she is being discriminated against on the grounds of her marital status, while the DWP's defence is that the European Court of Human Rights has ruled in favour of laws that set regulations on gender recognition that are designed to preserve a state's rejection of same sex marriage. The particular mention of marital status is in MB's favour, but against her is that fact the different provisions for her marital status relate to the gender recognition process and not to the provision of her pension. The irony is that if MB had been 3 years older she would probably have already been awarded consideration for her pension from age 60 This is due to a previous ECJ case, Sarah Richards vs Secretary of State for Work and Pensions, that MB cites and which the DWP responds to in which the ECJ deemed it discriminatory that a trans woman could not access pension at the same age as other women if there were no provision for gender recognition. The DWP's response echoes their decision in response to Richards in 2011 that adjustment of pension payments would only be made for those who turned 60 prior to the implementation of the Gender Recognition Act on 3 April 2005. One of the biggest problems facing MB is that the ECJ Richards judgement paragraph 43 states an expectation that the Gender Recognition Act will bring an end to such cases in relation to gender reassignment surgery, which was the basis of Richards' complaint. MB cannot benefit directly from the Richards because she was not 60 until 31 May 2008, 3 years after the implementation of the Gender Recognition Act.

The Supreme Court's referral to the ECJ over the issue of marital status may have an ulterior motive. They were being asked to make a judgement on the priority of European Union law over national law less than two months after a referendum result that called for the United Kingdom to leave the European Union. A case to the ECJ could take up to 24 months by which time the likely legislative results of that referendum result will be a lot clearer. At this point in time it seems likely that the United Kingdom will leave the European Union, but it is not remotely clear what that would mean in practice for current laws. If the United Kingdom was to go for a relatively swift departure it could maintain all present laws and then gradually revise them as required. On the other hand a much slower departure could mean that there is time for laws to be rewritten before departure, which may make the Supreme Court more hesitant about handing down a ruling on the basis of an aspect of European Union law that may not be present in that form in the post European Union legal system. MB's appeal to the the Supreme Court relies heavily on an appeal to European Union law, so in this transitional post referendum phase the referral to the ECJ helps to buy time in a currently uncertain legislative climate. Although in all fairness to the Supreme Court they probably felt as if they were being asked to make a ruling based on a decision that belonged to the ECJ. So as advantageous as the referral is in the current climate it is likely that the referral would have had to be made anyway. That undercuts that main point of Jane Fae's article: that the DWP was being cruel in continuing to pursue the case. It was MB who took up the issue of marital status with the Supreme Court and it was that which led to the latter seeking guidance from the ECJ. The DWP makes clear in its response that it is focused on the case as an attempt to undermine the Gender Recognition Act and in terms of what appears in the published Supreme Court decision the DWP does not mention pensions once.

Is MB's case about being paid a pension or about using European Union law to rewrite the Gender Recognition Act? Going by the summary of her arguments in the Supreme Court decision we know that MB acknowledges (argument 2) that European Union member states may determine the criteria for granting gender recognition, but asserts that this should be limited to physical and psychological characteristics and not marriage; asserts (argument 3) that it is discriminatory to apply a criterion in the Gender Recognition Act that only affects married applicants; hedges her bets by claiming (argument 4) that even if marriage was a legitimate criterion for gender recognition it should not be the basis of a pension decision; and concludes (argument 5) that her primary case is that the Gender Recognition Act discriminates against her on the grounds of sex, but adds that she is indirectly discriminated against because the great majority of gender reassignment cases are male to female, and closes with the claim that "for the above reasons it cannot be justified." The question is whether the non payment of her pension is the it that cannot be justified or the existence or present form of the Gender Recognition Act. In the light of argument 2 it is little wonder that the Supreme Court referred the case to the ECJ as that argument read like an attempt to exhaust the domestic procedures so that an ECJ case would happen. Even with a strong remain campaigner as the new Secretary of State for Work and Pensions in the post referendum atmosphere it would have been foolhardy of the Supreme Court to attempt to force the change of a United Kingdom law without the referral to the ECJ.

It is hard to tell what the likely result of the ECJ hearing would be, especially as it could be taking place at an advanced stage in the negotiations for the United Kingdom to extract itself from European Union law. The ECJ might judge that Council Directive 79/7 EEC has no bearing over the issue of what criteria go into determining gender recognition as that would override their previous ruling that appears in MB's argument 2 acknowledging that national governments decide the criteria for gender recognition. A swifter judgment might be for the ECJ to throw the case back to the Supreme Court on the grounds that the question is erroneous: the Gender Recognition Act has never restricted state pensions to the unmarried. Equally the ECJ might judge that marital status was used in a discriminatory way to deny her a state pension at 60. That would appear to be the least likely outcome, however, as it ruled in Richards that the Gender Recognition Act should put an end to similar cases and MB chose not to avail of the opportunity presented by that act. They cannot judge that MB was discriminated against on religious grounds as the Supreme Court has limited the question to Council Directive 79/7 EEC, which relates to sex discrimination. The ECJ will also be aware that agreeing with MB's stance would put them at variance with a 2014 judgement of the European Court of Human Rights in relation to a decision that may never be implemented before the United Kingdom leaves the jurisdiction of the European Union.

What would be consequences if the ECJ did find that marital status should not be relevant in a gender reassignment related pension case? The Supreme Court would still have to judge if that ECJ guidance was sufficient for MB to win her case on the assumption that she wished to continue with the appeal. If the appeal was won then the DWP would not be able to backdate the payments, but could in like manner to their 2011 response to the Richards judgement pay a percentage increase in the pension on the basis of the pension claim having been involuntarily deferred by then existing DWP rules. The government might choose to resolve the matter through legislation as such a judgement would raise issues of fair treatment. Most people going through gender reassignment who did not want to divorce under the 2005-2013 rules are likely to have chosen to not apply for an interim GRC. So in what sense may they be liable to avail of a ECJ and Supreme Court that stated that they would have been due a pension from aged 60 if they would satisfy the interim GRC criteria? Legislation may also be required to deal with the anomaly that such a judgement would throw up of pensioners being paid on the basis of a female pensionable age, but remaining legally male. The obvious solution would be to legislate that only those applying for a post 2013 GRC would qualify for the boosted pension, but about those who on religious grounds would be happier in a civil partnership than in what would become a same sex marriage? The could potentially be a lot of new legislation required at a time when parliament may be very busy with preparing the statue book for an imminent departure from the European Union. This could lead to this pension legislation becoming a battleground for those wanting to continue the parliamentary to keep the United Kingdom in the European Union. So while the numbers of people in MB's precise situation may be minuscule, the wider legislative ramifications may be huge. On the other hand many of these concerns might arise as the DWP has already been through a similar scenario in response to the Richards judgement, with the exception of those who refused to apply for an interim GRC as they refused to divorce their spouse.

Another set of possible ramifications of MB winning her appeal would be the claims of those in other circumstances who did not or could not gain a full GRC. This did not arise in the Richards case because that was specifically about those who had undergone gender reassignment surgery, but could not legally change their gender prior to April 2005. If MB wins her appeal it will mean pensions going to those without a full GRC who reached female pensionable age since the implementation of the Gender Recognition Act. This might include those who did not apply for a GRC due to the cost of applying and gathering the required evidence, because some evidence was not available, or who want to claim that they did comply with the physical and psychological criteria of gender reassignment, but were rejected by an overbearing Gender Recognition Panel. It is likely, though, that by the time their concerns could be given full consideration that the United Kingdom's departure from the European Union may already have taken effect.

The most controversial consequence of an MB victory may prove to be the central point of my deleted comment to Fae's article. That is the question of fairness if MB's religious conservatism helped her avoid the survivor's benefit pension penalty faced by those who applied for an interim GRC and then used it to end their marriage or civil partnership and then entered into a civil partnership or marriage. The Marriage (Same Sex Couples) Act 2013 failed to give redress to such people and a victory for MB might reopen that debate with a new source of grievance. Whatever lies in the future it is clear that a victory for MB is neither as assured or as simple to implement as Jane Fae believes.


© Mercia McMahon. All rights reserved

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