L3 SUMMARY TEXT 7 p. 27.

MB (Appellant) v Secretary of State for Work and Pensions (Respondent) (2016)

The Appellant in this case is transgender who after having been registered as a man at birth underwent gender reassignment in 1995 (to become a woman). 

In 2008, as she turned 60, the appellant thus applied for state pension to which she was entitled as a woman born before 1950. This pension, however, was denied to her on the grounds that she was not legally recognised as a woman. 

Indeed, in accordance with / pursuant to the Gender Recognition Act (Section 5, paragraph 7) (2004), (also “the Gender Recognition Act provides that”) eligibility to state retirement pension is to be determined as if the person’s acquired gender had always been their gender on condition that they have a full gender recognition certificate. 

This was not the case of the Appellant who, prior to undergoing gender reassignment surgery, had married as a man and who, on account of her marital status was only entitled to an interim Gender but not a full Reassignment certificate. 

The gender of the appellant is of significant / paramount importance as Directive 97/7 EEC aims to prevent against discrimination “on ground of sex either directly or indirectly by reference to marital or family status” but also allows member states to opt out of the scope of the directive concerning the determination of pensionable age. 

The existence of a specific pensionable age for men and women in the UK does not contravene the Directive. However, the Appellant challenges the notion that UK law imposes requirements other than social and physical criteria to determine whether an individual is a man or a woman. 

Due to / On account of a lack of direct authority from the CJEU, the Supreme Court decided to refer the case to the CJEU to determine if the directive forbids the imposition in National Law of extra requirement (such as marital status) other than physical or social criteria for recognising a change of gender. 

Transgender: Adj.