* United Kingdom, Supreme Court of the United Kingdom , 10 August 2016 UKSC 2014/0220

Identification of the case

• Non-discrimination (art. 21 CFREU)

• Sections 44 and 122 of the Social Security Contributions and Benefits Act 1992
• Sections 1, 2(1), 4(2) (as amended), 9(1), 5(1) and Schedule 5, paragraph 7 of the Gender Recognition Act 2004
• Section 11(c) of the Matrimonial Causes Act 1973

• Articles 3(1)(a), 4(1) and 7(1)(a) Directive 79/7/EEC (Social Security Directive)
• Article 2(1)(a) Directive 2006/54/EC (Equal Treatment Directive)

Summary of the case

MB was born male in 1948 and married a woman in 1974. She began to live as a woman in 1991 and underwent sex reassignment surgery in 1995. She did not hold a full certificate of recognition of her change of gender but she fulfilled the physical, social and psychological criteria provided by the national legislation for a legal recognition of a change of gender. Yet, the national legislation made the recognition of that change conditional on the annulment of any marriage entered into before such a change took place. Thus, under national law, she was still considered to be male.

On 31 May 2008 MB attained the age of 60. On 28 July 2008, she applied for a state retirement pension, backdated to 31 May 2008, on the basis that she was a woman. The application was rejected on 2 September 2008 on the ground that in the absence of a full gender recognition certificate, she could not be treated as a woman for the purpose of determining her statutory pensionable age. That decision was subsequently upheld by the First-tier Tribunal, the Upper Tribunal and the Court of Appeal. Permission to appeal was granted by the Supreme Court of the United Kingdom on 11 March 2015. The Supreme Court decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling.

1. Does Council Directive 79/7/EEC preclude 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?

Marriage and the legal recognition of change of gender fall within the competence of the Member States with regard to civil status. However, Member States must comply with EU law, in particular the provisions relating to non-discrimination set out in Directive 79/7 (and specifically Article 4(1), when exercising powers in the area of civil status). It prohibits all discrimination on grounds of sex as regards the conditions for statutory schemes ensuring protection against the risks of old age, including the State retirement pension scheme at issue. Direct discrimination, defined in Article 2(1)(a) of Directive 2006/54, must be understood in the same way in the context of Directive 79/7, including discrimination arising from gender reassignment. Persons who have lived for a significant period as persons of a gender other than their birth gender, and who have undergone a gender reassignment operation, must be considered to have changed gender. The marriage annulment condition in the UK legislation under consideration only applies to persons who have changed their gender, not those who have retained their birth gender. Therefore, the former group of persons are treated less favourably than the latter. This is based on sex and may constitute direct discrimination within the meaning of Article 4(1) of Directive 79/7.

The comparability of situations of these two groups must be assessed in a specific and concrete manner having regard to all the elements which characterise them. UK legislation grants a retirement pension to all persons who have reached retirement age and who have made adequate contributions to the UK’s state pension scheme. That legislation protects against the risks of old age by conferring the right to a retirement pension acquired in relation to the contributions paid by the person concerned during his or her working life, irrespective of marital status.

Hence, a person who changed gender after marrying and a person who has kept his or her birth gender and is married, find themselves in a comparable situation. The marital status of those persons makes that difference the decisive element in determining the comparability of the situations at issue, whereas marital status, in itself, is not relevant for the purposes of the granting of the state retirement pension. The purpose of the marriage annulment condition – to avoid marriage between persons of the same sex – is unrelated to the retirement pension scheme. Therefore, that purpose does not affect the comparability of the situations concerned and the national legislation at issue accords less favourable treatment, directly based on sex, to a person who changed gender after marrying, than to a person who has kept his or her birth gender and is married, even though those persons are in comparable situations. Moreover, the aim of avoiding same-sex marriages cannot justify direct discrimination on grounds of sex as it is not a ground for justification expressly recognised by Directive 79/7. The national legislation at issue in the main proceedings constitutes direct discrimination on grounds of sex and is prohibited by Directive 79/7.

Role of the Charter and role of the general principles on enforcement

The Charter was not applied in the case, either by the UK Court or the CJEU. However, the reasoning of the case in relation to Directive 79/7 has been applied in subsequent CJEU cases which apply Article 21 CFREU (e.g. Cresco, Case C 193/17).

Sections 44 and 122 of the Social Security Contributions and Benefits Act 1992 read in conjunction with section 122 of that Act and with Schedule 4, paragraph 1, of the Pensions Act 1995: A woman born before 6 April 1950 becomes eligible for the State retirement pension at the age of 60, and a man born before 6 December 1953 becomes eligible at the age of 65.

Section 1 of the Gender Recognition Act 2004 (the GRA) in its version applicable to the dispute in the main proceedings: A person who was aged at least 18 could apply to a Gender Recognition Panel (‘GRP’) for a full gender recognition certificate recording a change of his or her gender on the basis of living as a person of the other gender.

Section 2(1) of the GRA:

‘The GRP was required to grant a recognition certificate where the applicant:

(a) has or has had gender dysphoria,

(b) has lived in the acquired gender throughout the period of two years ending with the date on which the application is made,

(c) intends to continue to live in the acquired gender until death, and

(d) complies with the requirements imposed by and under section 3 [of the GRA].’

Subsection (2) of section 4 of the GRA: an unmarried applicant was entitled to a full gender recognition certificate, whereas, pursuant to section 4(3), a married applicant was entitled only to an interim gender recognition certificate.

Section 9(1) of the GRA: where a full gender recognition certificate was issued, the acquired gender thereafter became the person’s gender for all purposes.

Schedule 5, paragraph 7, of the GRA: once the gender recognition certificate had been issued, any question of entitlement to a State retirement pension was to be decided as if the person’s gender had always been the acquired gender.

An interim gender recognition certificate allowed a married applicant to apply to have his or her marriage annulled by a court. According to Section 5(1) of the GRA, the court granting the decree of nullity was then required to issue a full gender recognition certificate.

Section 11(c) of the Matrimonial Causes Act 1973, in its version applicable during the period at issue in the main proceedings, provided that a valid marriage could legally exist only between a male and a female.

The Marriage (Same Sex Couples) Act 2013, which came into force on 10 December 2014, allows persons of the same sex to marry.

Schedule 5 of that Act amended section 4 of the GRA so as to provide that a GRP must issue a full gender recognition certificate to a married applicant if the applicant’s spouse consents.

However, The Marriage (Same Sex Couples) Act 2013 was not applicable to the dispute in the main proceedings.

Neither the Charter nor the ECHR were mentioned by the CJEU, but in the national judgment requesting a preliminary ruling, Articles 8 and 12 ECHR were referred to by the Supreme Court when explaining that the reason for the adoption of the Gender Recognition Act was to fill a gap in UK law concerning gender reassignment that the ECtHR had held (in Goodwin v United Kingdom (2002) 35 EHRR 18) to be contrary to the two provisions.

Elements of judicial dialogue

• C‑423/04, Richards
• C‑267/06, Maruko
• C‑673/16, Coman and Others

• Hämäläinen v Finland, CE:ECHR:2014:0716JUD003735909

Preliminary reference

The Supreme Court was divided on the correct answer to the question referred and, since there was no CJEU authority directly in point, it referred the question for their guidance.

Legislative reform.

Additional notes on the decision

The discriminatory provisions of the 2004 Act were amended with the legalisation of same-sex marriage in the UK in 2014, but this was not a direct outcome of the CJEU case. The case itself was referred back to the Supreme Court to apply the CJEU ruling, but no record of this is available.