Development of EU Law before the Grand Chamber of the EU to Benefit Transpersons

Hamilton, Frances (2019) Development of EU Law before the Grand Chamber of the EU to Benefit Transpersons. International Labor Rights Case Law, 5 (3). pp. 335-339. ISSN 2405-6901

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Abstract

This case—MB v. Secretary of State for Work and Pensions—concerned a transperson who was born male and subsequently married a woman in her birth sex. Seventeen years after the marriage, the applicant underwent sex reassignment surgery but never received a full gender recognition certificate. This was because the UK’s Gender Recognition Act 2004 (‘GRA’) required married applicants to annul their marriage in order to obtain more than an interim certificate. As MB did not wish to annul her marriage to her long-term wife, she never received the full gender recognition certificate. When she subsequently sought to claim her state pension from the younger age of 60, which applicable to women, her claim was rejected. This was because the UK government still officially classified her as a male.

The argument made on behalf of the UK Secretary of State for Work and Pensions was that it should be for Member States “‘to determine the conditions under which a person’s change of gender may be legally recognised’ (paragraph 23 MB v Secretary of State for Work and Pensions Case C-451/16 ).” This, it was argued, should not only relate not only to physical and psychological criteria, but also to criteria relating to marital status (paragraph 23 MB v Secretary of State for Work and Pensions Case C-451/16) and that this should be within the scope of the UK’s discretion. The Grand Chamber of the Court of Justice of the European Union determined that the requirement to annul an pre-existing marriage in order to obtain a full Gender Recognition Certificate, subsequently entitling the applicant to access her state pension at the younger age applicable to women, contravened Article 4 Council Directive 79/7/EEC on the basis of sex discrimination.

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