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MB v. Secretary of State for Work and Pensions - (10 Aug 2016)

There shall be no discrimination on ground of sex either directly, or indirectly by reference in particular to marital or family status


Appellant was registered at birth as a man. From 1991, Appellant began to live as a woman. Appellant applied for a state retirement pension, on the footing that she was a woman. Application was rejected on ground that, in absence of a full gender recognition certificate, she could not be treated as a woman for purpose of determining her pensionable age. That decision was subsequently upheld by First-tier Tribunal, Upper Tribunal and Court of Appeal

Until 2005, law made no provision for gender reassignment. A person was for all legal purposes treated as having the gender determined by application of biological criteria at birth without regard to any psychological characteristics or later surgical intervention. In consequence, Parliament enacted Gender Recognition Act 2004. Section 1 of Act provided that a person could apply to a Gender Recognition Panel for a full gender recognition certificate recording a change of his or her birth gender “on the basis of … living in the other gender”. Applicant’s new gender was referred to as the “acquired gender”. After Gender Recognition Act, was passed, Parliament passed Civil Partnership Act 2004, which provided for legal recognition of same-sex partnerships upon registration. A civil partnership was not a marriage but had substantially the same legal consequences as a marriage. Once Civil Partnership Act had come into force, a married person to whom an interim gender recognition certificate had been issued could, after obtaining the annulment of marriage, enter into a civil partnership with his or her former spouse. These statutory arrangements were changed by Marriage (Same Sex Couples) Act 2013, which came into full force on 10 December 2014.

Although MB’s primary case was that, Gender Recognition Act directly discriminated against her on grounds of sex, she also contended that it discriminated indirectly, because evidence was that great majority of persons who had undergone gender reassignment had been reassigned from male to female. Secretary of State urged that, no question of indirect discrimination arises. Even on footing that most gender reassignments are male to female, there was no reason to regard it as more difficult for a male to female transsexual to qualify for a full gender recognition certificate than it was for a female to male transsexual.

As Supreme Court was divided on question referred the same that is “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” to Court of Justice.


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