In a judgment handed down on 31 July, the Court of Appeal has found that the UK scheme for giving formal recognition to changes of gender is compatible with EU law: MB v Secretary of State for Work and Pensions  EWCA Civ 1109.
The Appellant (a male-to-female transsexual) argued that the requirement in UK law that she be unmarried in order to be recognised in her new gender gave rise to discrimination, contrary to the principle of Equal Treatment in the EU Social Security Directive (Council Directive 79/7/EEC). The Court of Appeal rejected her argument, finding that it was for Member States to determine the conditions under which legal recognition was given to changes of gender, and that the condition in question was justified as a means of avoiding the creation of a same sex marriage at a time when such marriages were not otherwise permissible.
Whilst the Appellant’s argument was based on EU law, the Court of Appeal was guided by the recent decision of the European Court of Human Rights in Hamalainen v Finland, where the Court found that a similar condition in Finnish law was compatible with Articles 8, 12 and 14 of the ECHR. The Court of Appeal considered that, in applying the Social Security Directive, the EU Court of Justice was likely to regard ECHR jurisprudence as “highly persuasive”. The Court’s judgment is thus a further indicator of a growing harmonisation between EU law and ECHR law on fundamental rights such as the principle of equal treatment.
Ben Lask represented the Secretary of State for Work and Pensions.
Click to read the full MB v Secretary of State for Work and Pensions Judgment