Thursday, October 6, 2022

UK Supreme court refers gender issue to ECJ

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Recently in MB vs Secretary of State for Work and Pensions (2016), the United Kingdom’s Supreme Court had to decide on a plea challenging the provisions of the Gender Recognition Act. According to the plea, the provisions were discriminatory.

The appellant had been born a man but had been living as a woman since 1991. She had applied for a state retirement pension as a woman. However, the application was rejected on the ground that she did not get a gender recognition certificate.

In the UK, a woman born before April 6, 1950 is eligible for a state pension at the age of 60. A man born before December 6, 1953 is eligible for this pension at the age of 65. At the time relevant to this case, the change of gender was not recognized for pension purposes if the applicant was married.

The legal position in the UK until the Gender Recognition Act, 2004 came into force was that only a person’s gender at birth was recognized. The Gender Recognition Act provided that in circumstances where there has been a change of gender, a Gender Recognition Panel could provide a gender certificate after taking into consideration criteria such as surgical intervention or psychological factors.

The second step was the enactment of the Civil Partnership Act, 2004 which also recognized same sex partnerships after registration, giving legal rights similar to those provided by marriage although such partnerships are not considered marriage.

“MB”, was married before her gender change and she and her wife wished to remain married which is why “MB” did not apply for a Gender Recognition Certificate as that would have meant that they would have had to shift from marriage to a civil partnership.

The Gender Recognition Act was challenged by “MB” on the grounds, inter alia, that as a vast majority of applicants seek permission to change from male to female, it is more difficult for them to get recognition than it is for transsexuals making the shift from female to male. The Secretary of State argued that this is an incorrect perception.

However, the question of “whether Council Directive 79/7 EEC precludes 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” has been sent to the Court of Justice of the European Union to be examined.

Council Directive 97/7/EEC on the Progressive Implementation of the Principle of Equal Treatment for Men and Women in Matters of Social Security, Article 4  provides that there shall be “no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status”. Article 7(a) provides that the Directive was to be without prejudice to the right of Member States to exclude from its scope the determination of pensionable age for the purpose of granting old age and retirement pension. The UK has excluded the determination of pensionable age from its scope.

—India Legal Bureau

Lead picture: UK Supreme Court. Photo: Facebook

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