Gender Reassignment – the legal saga continues

22 Aug 2017

Secretary of State for Work and Pensions v HY (RP) [2017] UKUT 303 (AAC) (“HY”)

Alexandra Littlewood, Pupil Barrister, Monckton Chambers


In the latest round of judicial scrutiny of the legislation governing gender reassignment, the Upper Tribunal (“UT”) has held that the Gender Recognition Act 2004 is compatible with EU anti-discrimination law. Next up, the Court of Justice of the European Union (“CJEU”) will consider a similar question on a reference from the Supreme Court in MB v Secretary of State for Work and Pensions [2016] UKSC 53.

HY concerned the rights of male-to-female transgender people to claim a state retirement pension at the lower pensionable age applicable to women. The UT held that the UK legislative scheme, which requires a male-to-female transgender person to hold a gender recognition certificate before claiming retirement pension on the basis that they are a woman, was compatible with EU law. Its conclusions turned on its interpretation of the equal treatment principle in Council Directive 79/7/EEC on equal treatment for men and women in matters of social security, and on the CJEU’s seminal judgment in Case C-423/04 Richards v Secretary of State of Work and Pensions.

Ben Lask was instructed by the Government Legal Department for the Secretary of State for Work and Pensions. Brendan McGurk was instructed by Arnold & Porter Kaye Scholer LLP for the claimants.

Please click here to read the case note.