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This was an appeal by a male to female transsexual. Under UK legislation (the Gender Recognition Act 2004), she could not be legally recognised as a women because she remained married to her wife. This meant she was unable to claim her state retirement pension from the age of 60 (the pensionable age for women), but instead had to wait until she was 65 (the pensionable age for men). The Appellant claimed that the position under domestic law was discriminatory and in breach of EU law (Directive 79/7 on Equal Treatment in Social Security). In a fully reasoned judgment, the Upper Tribunal dismissed the appeal. The Judge held that there was no discrimination as between women whose gender was acquired and women who were born female. As such the UK scheme was not incompatible with EU law. The Judge further held that the Court of Appeal’s judgment in Timbrell v SSWP [2010] 3 C.M.L.R. 42 did not assist the Appellant because it was concerned solely with the position before the Gender Recognition Act 2004 came into force.
Ben Lask acted for the Secretary of State. Click here to read the full MB v Dept for Work and Pensions Judgment