Pensions – Discrimination – Gender reassignment – Retirement age

Christine Jennifer Timbrell v Secretary of State for Work and Pensions: CA (Civ Div) (Lords Justices Thorpe, Moore-Bick, Aikens): 22 June 2010

The appellant (T) appealed against a decision of the respondent secretary of state refusing to pay her a state pension until the age of 65.

T had undergone male to female gender reassignment surgery. In 2002 she applied for a state pension backdated to her 60th birthday. Nothing was done and in 2006 T made a further claim. The secretary of state decided that T was entitled to a state pension from her 65th birthday. T appealed and the tribunal, which treated her claim as being made in 2006, held that, as she had not obtained a full gender recognition certificate under the Gender Recognition Act 2004, she was not entitled to legal recognition of her new gender and therefore not entitled to claim her state pension as a woman. T appealed and the Upper Tribunal held that T did not satisfy the criteria to be treated as a woman which could entitle her to receive a pension at the age of 60 under Council Directive 79/7. T submitted that: (1) she made her claim in 2002 before the act was passed and the question of whether she was entitled to claim her pension had to be determined according to the law before the act; (2) the question of whether she was entitled to claim her pension, or whether any UK legislation or decisions that prevented her from doing so were discriminatory and contrary to the directive, had to be determined according to the law before the act.

Held: (1) The provisions of the act were not retrospective and as such T’s rights between 2002 and 2005 had to be judged on the basis of the law applicable at that time.

(2) Prior to the act it was impossible for a person who had acquired a different gender to obtain the legal rights associated with the acquired gender, Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467 considered. Article 4(1) precluded, on the grounds that it was either directly or indirectly discriminatory, a situation where there was no legislative or other legal means to give recognition to a person’s acquired gender, Richards v Secretary of State for Work and Pensions (C423/04) (2006) All ER (EC) 895 ECJ (1st Chamber) followed.

(3) Accordingly, the UK had failed, within the time allowed, to take the necessary measures to implement the directive to ensure that any national laws, regulations and administrative provisions that were contrary to the principle of equal treatment as defined in article 4(1) were abolished. The obligations set out in article 4(1) and 5 were in precise and unequivocal terms. The secretary of state could not rely on the Social Security Contributions and Benefits Act 1992, Pensions Act 1995 and the decision in Bellinger to deny T the right to a pension at 60. By virtue of article 4 the secretary of state was obliged to recognise that T had a right by virtue of her acquired gender to a retirement pension from her 60th birthday. Accordingly, the Upper Tribunal erred in its decision.

Appeal allowed.

Marie-Eleni Demetriou (instructed by Freshfields Bruckhaus Deringer) for the appellant; Jeremy Johnson (instructed by in-house solicitor) for the respondent.