Everyone can now retire at the same age as biological women - Trans/EU court decision

[HowWasLastnight]

www.bbc.co.uk/news/uk-44612117

Wouldn't any man be able to identify as a woman and claim back pension now? Why wouldn't they? They can stay married, continue to wear jeans, just tweak their name a bit... nice little earner.

For those on the trans activist side saying this proved an unfairness, did it not also balance out and mean that trans men GAINED?

They could have stayed married (to a man) and still got a pension at 60, not 65. being legally still a woman.

So by not getting a GRA they qualified earlier.

So for once here transmen benefiited over transwomen if they put love before money.

Which ought to have been what this was about and the transperson in question should have accepted that and never demanded the money in the first place.

It was their free choice to do either after all.

we are all being shafted by this Government , and Labour wont change anything either !

they would have us all working till they put us in our box !

what concerns me as a tax payer is how much defending this case has already cost this Government , am sure its cost far more than it saved ?

when Hairdressers in Greece get their pensions at 50

I would suggest that everyone ignore Snappity as they clearly have a rather poor understanding of the law.

I think I'll stick to what the judgment says instead:

As a preliminary point, it must be noted that the case in the main proceedings and the question referred to the Court concern only the conditions for entitlement to the State retirement pension at issue in the main proceedings. Accordingly, the Court is not being asked to consider, generally, whether the legal recognition of a change of gender may be conditional on the annulment of a marriage entered into before that change of gender.

Another nice try. Another fail. ECJ, as you point out, isn't (and cannot be) concerned whether a change of gender has occurred, only a change of sex. And on that question the judgement is clear: MB has changed sex and done so without a GRC.

So, strictly-speaking, a change of gender still needs a GRC but this judgment sets precedent that a change of sex doesn't require a GRC but can occur simply through the custom and practice of living as a woman. Regardless of the narrowness of the final judgment that interim step has set a massive de facto precedent, even if not strictly de jure. It is inconceivable that the ECJ could reach a different conclusion about sex in the context of different directives eg employment and services.

As I said before, it is essentially a restatement of PvS for the post-GRA era. It's a massive judgement.

This took 10 years (pensioner reached turned 60 in 2008, according to the article) and (please confirm or correct, legal eagles) still isn’t completely settled, as it now goes back before a British judge.

In the meantime, said pensioner has reached pension age based on birth sex and the rules have changed, with women’s retirement age now being equalised (incremental progress already begun).

So why did the case not get settled? I mean, surely it was in the government’s interest to quietly settle and hope not too many more similar cases come up? The numbers of pensioner aged transpeople are thought to be relatively small (although not having the tools to track that is one of the failings of the current GRC system).

Wouldn't any man be able to identify as a woman and claim back pension now? Why wouldn't they? They can stay married, continue to wear jeans, just tweak their name a bit... nice little earner.

If you read the judgement, MB has had surgery and that is potentially a material fact.

I think that it might be that they have treated the transwomen as if they had a GRC because they shouldn't have been denied one due to their marital status. In which case it was legal sex (not biological). There is no 'proportional means to legitimate end' (or whatever that phrase is) to discriminate on the basis of legal sex, hence the ruling on the case.

I can see why you say that, but I don't think so.

ECJ cannot rule on whether or not a State should recognise a change of gender by an individual. That's outside its jurisdiction. So it cannot rule that MB was unlawfully denied a GRC. The only things that ECJ can consider is what was MB's sex and did she suffer discrimination on grounds of her sex. It concluded that her sex is female (the court isn't concerned with her gender) and that she suffered sex discrimination.

Hi Snappity, you said
And on that question the judgement is clear: MB has changed sex and done so without a GRC

And then you said
If you read the judgement, MB has had surgery and that is potentially a material fact.

So my point is that the ruling seems to imply that the transwomen should have had a GRC and therefore would have changed 'legal sex'. The court appears to be saying that it was unlawful to deny a GRC due to the transwoman's marriage situation.

I don't think it's setting a precedent at all.

Again, I would suggest that everyone ignore Snappity's comment of 15:05. They like to pretend they know what they are talking about but don't have a clue and anyone who knows the law can see what they say is nonsense.

BettyDuMonde, it will come back to the UK Supreme Court but it will be a formality now that the CJEU have decided this point - they might not even need a further hearing. As to why this wasn't settled, given that the Government have lost I expect they will have to bear their own costs and pay the other side's costs, but that probably won't be more than a few hundred grand which is small potatoes to the Government. Whilst the number of people affected by this judgment won't be massive I imagine that the pension costs will still outweigh the legal costs. And of course if the Government had won then they could have reclaimed their legal costs and wouldn't have to pay this extra pension money, so you can see why they might have wanted to take the gamble rather than settling.

Thanks AllyMcBeagle!

One of the changes that’s taken place in the last ten years that I probably should’ve also listed is same sex marriage - because that changes (negates?) some of the issues that led to the GRA 2004 even happening?

I don’t have the knowledge to understand the implication of the ruling, but I can see why it would be made.

I suspect that this is one of the trans equality issues that does now need to be clarified in law but that doesn’t need to conflict with women’s rights?

Please correct me if I’m missing something - everyday is a school day and I am eager to learn!

Will the transmen who gained by getting a pension at 60 (see my post above) have to pay this back to the government now as they should have been men and got it at 65?

Those are the repercussions I can see here.

ECJ cannot rule on whether or not a State should recognise a change of gender by an individual. That's outside its jurisdiction. So it cannot rule that MB was unlawfully denied a GRC. The only things that ECJ can consider is what was MB's sex and did she suffer discrimination on grounds of her sex. It concluded that her sex is female (the court isn't concerned with her gender) and that she suffered sex discrimination.

I'm sorry but this is just utter, utter nonsense.

The court had already decided in Richardson that a transwoman who had had reassignment surgery and was living as a woman (whatever that means) for a significant period of should be treated as female for pension purposes. The Claimant in that case couldn't have obtained a GRC because they weren't available at the relevant time.

This case just means that although GRCs are now available it doesn't change the position re: pensions. You don't need a GRC for state pensions - there is a more limited test.

The CJEU have made it very clear that MB is to be treated as a woman with regards to pensions. It has nothing to do with gender vs sex (and the 2 terms are generally used interchangeably in law).

I think my cat has a better understanding of the law than Snappity.

Betty, I was one of the transsexual pensioners with a GRA. Had I not legally changed with a GRC via the 2004 act I would have qualified under the new pension regime as until then I was expecting to do. As a man at 65.

The GRC disadvantaged me as I became - as a women - one of those who had pension age pushed back at short notice. But I still qualified, as a woman, before 65 and so (just) under the old rules.

In my case I gave up work soon after getting my GRC to become a full time carer to my mum but this was not taken into account in the same way under the old rules as it would have been under the new. So I had to defer my pension by several years to catch up to the amount I would have got if I had not got a GRC.

The way pensions have changed in the last decade there were always going to be anomalies and I think in this case the government were right to fight it and the European court wrong.

This transwoman had a free choice, just as I did, to prioritise love or money and to put the importance of getting a GRC above or below any financial consequences of doing so.

We all had a free choice to do what we wanted to do. So did she. But she has fought this for years in what looks to me like wanting to have it both ways.

Without thinking of the precedent on transmen who might have been overpais by not changing their status as women to stay married.

Bit selfish for my liking.

Again, I would suggest that everyone ignore Snappity's comment of 15:05. They like to pretend they know what they are talking about but don't have a clue and anyone who knows the law can see what they say is nonsense.

Another fail.

If you go back to P v S, there too a narrow question was asked "The Industrial Tribunal' s two questions, which may appropriately be considered together, must therefore be construed as asking whether, having regard to the purpose of the directive, Article 5(1) precludes dismissal of a transsexual for a reason related to his or her gender reassignment". The ECJ judgement was simply to answer that question but de facto it established that gender reassignment is a protected characteristic in services, employment and social security. PvS has been cited many times.

There is every reason to believe that the MB judgment is a similar milestone because it expressly says that sex can change (ie what matters for services, employment and social security) without a GRC simply by living as a woman. This is going to be authority that trans women are female and that they can suffer "no discrimination whatsoever" compared to any other women in the fields of social security, employment and services. We both know it.

It may not have been about love.

They may not live with the wife. It's looking like it's about religion to me. What's odd to me, is they are at the same time not wanting to offend God by divorcing, yet living as if God made a mistake over their body. Anyway we each have our own relationship with religion and they are entitled to their beliefs.

Still like some reassurance that transmen will not face a bill for 5 years overpaid pension when they stayed married and gained, rather than lost, by taking pension earlier.

This is going to be authority that trans women are female and that they can suffer "no discrimination whatsoever" compared to any other women in the fields of social security, employment and services.

And unicorns from Mars will invade the Earth. All it does is restate the test for pensions which was already decided over a decade ago. Honestly, I wish really wish I could make you understand how wrong you are but I give up.

Ally's Cat: Miaow.
Ally: What's that cat?
Ally's Cat: Miaow.
Ally: And what do you think of the CJEU's judgment in MB v SSWP today cat?
Ally's Cat: Miaow.
Ally: Well that was more enlightening than a further discussion with Snappity at least.
Ally's Cat: 😹

Still like some reassurance that transmen will not face a bill for 5 years overpaid pension when they stayed married and gained, rather than lost, by taking pension earlier.

I'm not 100% certain but I doubt the Government would be able to even if they wanted to. There was probably a policy in place at the time saying that they were entitled to it and the Government's powers to reclaim overpayments which are due to the Government's error (including an error of law) are fairly limited. I would be genuinely shocked if they even attempted to reclaim anything.

Thanks, Ally, but the precedent set here still seems rather me-centric and unmindful of possible consequences on others.

And unicorns from Mars will invade the Earth. All it does is restate the test for pensions which was already decided over a decade ago. Honestly, I wish really wish I could make you understand how wrong you are but I give up.

It patently doesn't.

If it had, the Supreme Court would not have referred the question to the ECJ because it was settled law. It only reached ECJ because it wasn't settled law.

Essentially, the Government was arguing that because MB didn't have a GRC, that MB had sex = M and SPA = 60. This is how the Supreme Court summarised the situation:

On 31 May 2008 MB attained the age of 60. On 28 July 2008, she applied for a state retirement pension, backdated to 31 May 2008, on the footing that she was a woman. The application was rejected on 2 September 2008 on the ground that in the absence of a full gender recognition certificate, she could not be treated as a woman for the purpose of determining her pensionable age

ECJ has found that MB has sex = F (for social security) and passed it back to the Supreme Court to decide SPA.

In that regard, although, as it was noted in paragraph 29 of the present judgment, it is for the Member States to establish the conditions for legal recognition of a person’s change of gender, the fact remains that, for the purposes of the application of Directive 79/7, persons who have lived for a significant period as persons of a gender other than their birth gender and who have undergone a gender reassignment operation must be considered to have changed gender.

This is absolutely authority for the fact that sex can change without a GRC and authority for the proposition that if someone has surgery and lives as a woman that their sex is FEMALE for those matters within the scope of ECJ - notably social security, employment and services - because ECJ isn't going to decide that someone in that situation had a different sex for social security than services of employment because the principles for determination of sex are clearly the same.

And it is sex because that's the characteristic within scope of ECJ even if gender is used in the judgement.

Essentially, the Government was arguing that because MB didn't have a GRC, that MB had sex = M and SPA = 65.

Typo corrected

I would think that the Government's ability to try to reclaim back "overpaid" pension to transmen who received it "too early" is so limited - and the numbers involved so small - that the issue will be quietly put into a drawer marked "too difficult and costly so let's write it off and put our resources into something else".

In my case I gave up work soon after getting my GRC to become a full time carer to my mum

Now that really is "living like a woman"

Oh Snappity I really don't know whether you are just monumentally confused or arguing in bad faith. Even with a lot of wishful thinking, I am struggling to see how you could read that into the judgment.

OK, one more try because I am bored and this may be of vague interest to some other posters...

1. In the Richards case the Claimant reached 60 in 2002 prior to the introduction of the GRA. The CJEU (or the ECJ as it was known then) decided that Richards should get a pension because they had undergone surgery and were living as a woman and that was enough.

1. In Timbrell, the Claimant reached 60 in 2001 but their case ended up getting heard by the courts after Richards (it was stayed - ie put on pause - until Richards reached its conclusion) and ended up in the Court of Appeal in 2010. By that point the GRA was in force but the court held that they should ignore the GRA and use the test from Richards because Timbrell had applied for their pension in 2002 before the GRA came into force.

1. Then we have the current case - MB. The Claimant could have obtained a GRC as the GRA had come into force by the time they retired in 2008, but did not get one because they refused to annul their marriage. MB said that the old test from Richards should continue to apply to any cases where a GRC had not been issued.

1. But the Government argued that, now that the GRA is in force, they should just look at whether someone has a GRC in order to work out when they are entitled to a pension. This is from the Supreme Court interim judgment (www.bailii.org/uk/cases/UKSC/2016/53.html):

"The principal arguments for the Secretary of State may be summarised as follows:
(1) The decision of the Court of Justice 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 [ie hole] has been filled in the United Kingdom since 2005 [ie by the GRA]. The decision is of limited relevance to the conditions on which gender reassignment may lawfully be recognised under a comprehensive legislative scheme for recognition..."

1. It wasn't clear in MB whether they should carry on applying the old test from Richards now that the GRA was in force. The Court of Appeal found in the Government's favour and said it should now just be a question of whether someone has a GRC or not (www.bailii.org/ew/cases/EWCA/Civ/2014/1112.html). But the CJEU have now clarified that the old test can continue to apply for pensions where someone doesn't have a GRC for whatever reason. From today's CJEU judgment:

"[EU sex discrimination law] must be interpreted as precluding national legislation which requires a person... to satisfy the condition of not being married to a person of the gender that he or she has acquired as a result of that change, in order to be able to claim a State retirement pension as from the statutory pensionable age applicable to persons of his or her acquired gender." (emphasis added)

So for the final time, nothing to do with sex vs. gender. And this is as likely to change anything as 🦄 🌕 🚀 🌍 (the unicorns are from the moon now as I can't find an emoji for Mars).

That's a very clear summary, thank you.

And the key point is the original declaration covering cases before the GRA existed required MORE than the GRA does now.

It involved surgery which the GRA opted not to insist upon due to concerns over forced sterilization (which would have had to see it be reversed had they insisted) and discrimination against cases where some might not be fit enough for surgery.

Which means this ruling is useless for any self ID adherents because you need medical assessment to get surgery and so if they want that replaced by a self declaration then these adjudicated cases would not apply unless they followed the current GRA rules.

Which, of course, all those asking for self ID could start to do tomorrow - but seemingly won't.

That's spot on homefromthehills. The judgment means that for transwomen to get their state pensions at the state pension age for women they can either A) have a GRC (which it is possible to get without surgery) or B) have had surgery and be living as a woman.

It's probably likely to be of limited use going forward with the pension ages for men and women being equalised, but could be a windfall for some older transwomen who haven't obtained a GRC.