The UK Supreme Court has decided to send a case involving a transgender woman to the European Court of Justice.
Identified in the judgment as ‘MB’, the 68 year-old was born male and married in 1974. She began living as a woman in 1991 and underwent sex reassignment surgery in 1995.
Under the Gender Recognition Act 2004, those who transition can apply for a gender recognition certificate. However, at the time it was enacted, such a certificate could not be issued to a married person unless they had their marriage annulled. MB did not apply for a certificate because she and her wife wanted to stay married.
So when MB applied for a state pension following her 60th birthday in 2008, she was rejected. As she did not have the certificate, she was not recognised as a woman. So the Department for Work and Pensions (DWP) told her she would have to wait until she turned 65 before she could receive her pension like men have to.
MB challenged that decision but the Court of Appeal sided with the DWP and declared she was legally still a man. Despite the unanimous ruling, Lord Justice Underhill said MB had been the victim of “a real misfortune”.
Undeterred, MB took her case to the Supreme Court. She argued that the decisions against her went against a European Union legal directive which says the law should allow “no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status”. MB claimed the marital status conditions in the Gender Recognition Act represented “unlawful discrimination”.
The Supreme Court justices were “divided on the question”. Lord Sumption explained that the Court of Justice of the European Union (CJEU) had no rules specifically about cases like this one, the Supreme Court could not make a ruling. Instead, the issue would be referred to the CJEU for their input.
Read the full Supreme Court judgment here.