Rights for LGBTQ persons: MB v Secretary of State for Work and Pensions

Hamilton, Frances (2019) Rights for LGBTQ persons: MB v Secretary of State for Work and Pensions. Family Law, 2019 (Jan). pp. 54-56. ISSN 0014-7281

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Abstract

In the case of MB v Secretary of State for Work and Pensions[Case C-451/16] [2018] Pens. L.R. 17, the European Court of Justice (‘CJEU’) determined that the requirement of the Gender Recognition Act 2004 (‘GRA 2004’), which required trans persons to annul their marriage before they would be granted a full Gender Recognition Certificate in their new sex (prior to same-sex marriage being legalised in 2013), which was also necessary to claim state pension benefits for women from the age of 60, contravened Article 4 Council Directive 79//7/EEC non-discrimination provisions. The consequence of the GRA 2004 provisions meant that many individuals never obtained gender recognition certificates as they did not want to annul their marriages. This subsequently meant that they could not exercise the right to claim the state pension at the lower age of 60 previously given to women (where men had to wait until 65). The far reaching judgment from the CJEU demonstrates again that the expanding nature of EU family law. The concept of EU citizenship is leading to an ever greater array of rights being given to EU citizens. Following Brexit UK citizens will no longer be able to benefit from such interventions from the CJEU.

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