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Transgender woman ‘remains a man’ under the law, says judge

A transgender woman has been told by a judge in the Court of Appeal that she “remains a man” under the law.

In MB v Secretary of State for Work And Pensions, the woman appealed a decision that said she was ineligible for a female state pension after turning 60 back in 2008.

Under the Gender Recognition Act 2004, someone who identifies as a member of the opposite sex has the right to legal recognition in the form of a ‘full gender recognition certificate’.

Under the same Act, a person cannot receive the required certificate if they are married. In order for a married person to have a transition officially recognised, they need to have their marriage annulled.

The woman in this case, identified only as ‘MB’ in the judgment, had decided to stay married to her wife of 38 years after her transition. This was because, as a committed Christian, she still felt “married in the sight of God”.

As a result, Lord Justice Underhill said, she “remains a man” under the law.

The judge noted that there are provisions in the Marriage (Same Sex Couples) Act 2013 which would allow for a married transgender person to have their assigned sex recognised without an annulment, but those are yet to come into effect.

He added that once MB is eligible for a full gender recognition certificate, she will not be able to retroactively claim a state pension.

Lord Justice Underhill concluded that he had to dismiss MB’s appeal against the Department for Work and Pensions’ decision, but lamented that the changes to the law “have occurred too late for her to benefit from them”.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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