In MB v Secretary of State for Work and Pensions [2016] UKSC 53 MB was born on 31 May 1948 and was registered at birth as a man. MB was married on 21 September 1974. In 1991 she began to live as a woman and in 1995 underwent sex reassignment surgery. MB had not applied for a gender recognition certificate since the Gender Recognition Act 2004 came into force because she and her wife continued to live together (and still do so) and wished to remain married: for religious reasons they were unwilling to have their marriage annulled and enter a civil partnership [13] – hence this post.

MB reached sixty in May 2008 and in July 2008 applied for a state retirement pension, backdated to 31 May, on the basis that she was a woman. Her application was rejected on the ground that, absent a full gender recognition certificate, she could not be treated as a woman for the purpose of determining her pensionable age. The First-tier Tribunal, the Upper Tribunal and the Court of Appeal all upheld that decision [14].

Before the Supreme Court MB argued, in brief, that:

• The CJEU had already recognised that the prohibition in article 4(1) of the Directive on discrimination on grounds of sex extends to discrimination between persons of a given birth gender and persons who have acquired the same gender by later reassignment: P v S and Cornwall County Council (Case C-13/94) [1996] ECR I-2143 and Richards v Secretary of State for Work and Pensions (Case C-423/04) [2006] ECR I-3585.

• Though, in principle, it was for member states to determine in domestic law the conditions on which a person’s change of gender might be legally recognised, the power to impose conditions was confined to those relating to the objective physical or psychological characteristics which determined whether an applicant was a man or a woman and could not be used to impose conditions relating to such matters as marital status that had nothing to do with determining an applicant’s gender.

• Because the holder of an interim gender recognition certificate must have satisfied the physical and psychological criteria for gender recognition, imposing a further condition for obtaining a full certificate which applied to married applicants only was unlawful discrimination.

• Even if it were legitimate to impose the marriage condition for the purpose of protecting the status of marriage as a relationship between a man and a woman, that could not justify imposing the same condition on eligibility for a state retirement pension, to which marital status was irrelevant.

• The Gender Recognition Act not only discriminated against her directly on grounds of sex, it also discriminated indirectly, because the great majority of those who had undergone gender reassignment had been reassigned from male to female [15].

The Secretary of State’s response was as follows:

• The decision of the CJEU in Richards was concerned with discrimination arising from the absence at the relevant time of any provision in English law for recognising gender reassignment: that lacuna was in 2005 and Richards was of limited relevance to the conditions on which gender reassignment might lawfully be recognised under a comprehensive legislative scheme for recognition.

• At the time when Richards was decided, the CJEU had already recognised in KB that it was for member states to determine those conditions, and it reaffirmed that principle in Richards.

• The United Kingdom might properly make the recognition of gender change dependent on a process of registration or certification: under the Gender Reassignment Act, a person born a man was not a woman merely by virtue of establishing that she had the qualifying social, physical and psychological characteristics – she had to have a full certificate.

• There was no reason why the conditions for  issuing a certificate should be limited to satisfying the social, physical and psychological gender criteria: gender reassignment had significant social implications which the law might also regulate and the conditions might therefore properly reflect criteria such as the status of marriage.

• The ECtHR had upheld the marriage condition as being in itself compatible with the ECHR (in Parry v United Kingdom (1995) 19 EHRR CD86 and see Hamalainen v Finland (2014) 37 BHRC 55) because, though the Convention required states to recognise the acquired gender of transsexual persons, it did not require them to allow marriages between same-sex couples.

• No question of indirect discrimination arose: it was no more difficult for a male-to-female transsexual to qualify for a full gender recognition certificate than for a female-to-male transsexual [15].

The Supreme Court was divided on the issue and decided to refer the following question to the Court of Justice:

“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” [18].