2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The Appellant, a male-to-female transsexual who has not applied for a gender recognition certificate due to the requirement of marriage annulment, was denied a state pension upon turning 60. She appealed the decision, arguing it was unlawful discrimination under the Social Security Directive and the Equality Act 2010. The court held that the requirement for marriage annulment prior to gender recognition was not discriminatory and dismissed the appeal.
Judgment
Lord Justice Underhill :
INTRODUCTION
The situation which gives rise to this appeal can be summarised as follows:
(1) The Appellant is a male-to-female transsexual. She was born on 31 May 1948. In 1974, while she was still a man, she married a woman with whom she still lives. They have two daughters. She began to live as a woman in 1991 and underwent gender reassignment surgery in 1995. I will refer to the Appellant as “she”, although as appears below she has never applied for a gender recognition certificate.
(2) With effect from the coming into force of the relevant provisions of the Gender Recognition Act 2004 on 4 April 2005, the Appellant has had the right to apply for a “full gender recognition certificate”. Section 9 (1) of the Act provides that “where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender”. However a full certificate cannot be issued to a person who is married (see section 4 (2) and (3)). The 2004 Act was enacted in the light of the decision of the European Court of Human Rights in Goodwin v United Kingdom [2002] IRLR 664 , which held that it was a breach of the human rights of a transsexual not to be able to have their change of gender recognised in law. A married person who has had their gender reassigned is entitled to have the marriage annulled on that basis (see Schedule 2 of the Act, adding gender reassignment to the grounds of voidability under section 12 of the Matrimonial Causes Act 1973); but unless and until they do so their change of gender will not be recognised. The effect of these provisions is common ground and I need not set out their full terms. They can be issued with an interim certificate, but that has no effect unless and until the marriage is annulled – see section 5.
(3) The Appellant does not wish to have her marriage annulled. She and her wife have lived as a married couple for 38 years and do not wish to change. Also, as a Christian she says that she and her wife feel married in the sight of God. Accordingly she has not applied for a gender recognition certificate, and so far as the law is concerned she remains a man.
(4) On 31 May 2008 the Appellant became 60. She applied for a state pension on the ground that she had reached what was then the pensionable age for a woman. The application was refused on the basis that she was a man and was accordingly not entitled to a pension until the age of 65. The provisions gover