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Trans woman wins right to backdated pension

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  1. When this type of case is brought before a court, it only adds fury to the draconian idea of divorcing your long term partner to satisfy a psych, and of course religious dogma.

  2. So what does this judgement mean for Christine Timbrell. Will she, and others in her position, be able to obtain gender recognition and remain married?

  3. Mihangel apYrs 22 Jun 2010, 1:04pm

    well that should set the cat among the pigeons!

    This court says she’s a woman even though she doesn’t fulfill the legislative requirements, ie a woman can’t be married to a woman. If this stands the whole CP thing is, or should be, up in the air as CP is about a relationship between two SS partners, not gay ones: a precedence will have been set.

    Now I’m perfectly happy with that as I think that CP isn’t equivalent in all ways to marriage, but the system won’t be.

    As an aside: these two were married by a bishop (no less!) According to Xian myth, a sacred marriage may not be broken (“.. whom god hath joined let no man put asunder”). So even if they had a civil divorce, “god” would still consider them married

  4. When I keep hearing about these cases I don’t understand why the men in England aren’t challenging the gender discrimination of allowing women to draw their pensions five years earlier in spite of the fact that men die earlier and pay more into the pension fund?

    How can courts rule that it’s gender discrimination to not allow trans women to get their pension 5 years earlier than if they hadn’t transitioned without realizing that the gender discrimination issue isn’t about being transgender at all. The TRULY fair and nondiscriminatory way to resolve this issue is to end the gender bias across the board.

    I don’t understand the reasoning behind the gender discrepancy anyway. I certainly don’t understand why men in England stand by like eunuchs and accept this harmful discrimination, acting as if it doesn’t exist and doesn’t effect them.

  5. I realize that the age of retirement is being “gradually” equalized. But why gradually? We don’t accept “gradual” remedies to gender discrimination for women. What about all the men who will die before the discrimination is ended? What about gay male couples who will be DOUBLY harmed?

    Why is this not an issue for men, and especially for gay male couples?

  6. Zeke:
    > We don’t accept “gradual” remedies to gender discrimination for women.

    Given that sex discrimination laws came into force in the 1970s and sex discrimination is still rampant, it is difficult to agree with that assessment.

  7. > Lord Justice Aikens, giving the ruling of the three judges
    > at the Appeal Court, said there was a total lack of legal
    > framework in English law to recognise gender change and that
    > barring Ms Timbrell from her pension was discrimination.

    That’s a bit of a shock given that the Gender Recognition Act claims to be exactly for that purpose. It will be interesting to read the judgement itself.

    Of course that couple should not have to divorce. And accessing one human right should not require sacrifice of another human right.

    Equal access to marriage would eliminate their particular problem – and would have greatly shortened the Gender Recognition Act – but there are a great many other serious problems with the act that prevent many of those it was supposed to assist from accessing our right (granted by the ECHR Goodwin judgement) to be legally the sex we actually are, and the judge’s comments might seem to apply to those too.

    See my comment http://www.pinknews.co.uk/?comments_popup=17780#comment-119331 , and the follow-up completing it when I can get the system to post it, for the failings of the act, on top of its appalling treatment of those already in marriages or civil partnerships.

  8. de Villiers 22 Jun 2010, 7:18pm

    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 art.4(1) were abolished. The obligations set out in art.4(1) and art.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 art.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.

  9. de Villiers 22 Jun 2010, 7:19pm

    The Act refers to the Gender Recognition Act 2004.

  10. Thank you de Villiers. Can you give me a URL for the full original please, since Google isn’t being helpful and it seems rather different to the PinkNews interpretation?

    Your quotes seem to imply it only refers to pre-2005, but that it finds the UK in breach of the Directive before then, and perhaps still, which might have quite radical effect. I would expect the government to appeal such a finding, if permitted.

    A great shame they adopted the grossly prejudicial “acquired gender” terminology, which is not true to Bellinger, or the Directive.

  11. Having read the case, I think the dust has yet to settle on this decision.

    The conflict between the decision and Christine Timbrell’s existing marriage was rather sidestepped in the proceedings, per para 35 of the judgement:

    “In argument I understood Mr Johnson to accept an important point on behalf of the SSWP. This is that if we acceded to Ms Timbrell’s arguments so that we concluded that she was entitled to a retirement pension from her 60th birthday, then the Secretary of State would not argue that Ms Timbrell’s position changed after the GRA came into force on 4 April 2005. In other words, the SSWP would not insist that, as from that date, Ms Timbrell had to comply with all the conditions laid down in that Act before she would be entitled to a retirement pension for the period after 4 April 2005.”

    It was not entirely clear from this whether DWP were conceding the point in general (hooray!) or conceding solely in this case to avoid the creation of a binding legal precedent (boo!). Like everyone else, I am keen to see the end of the requirement to annul marriage, such a hateful piece of law that totally disregards the rights of the non-trans half of the relationship. Changing to a CP can have significant adverse financial effects on the non-trans spouse’s finances, creates an even greater challenge to the sexual identity of the non-trans spouse and is a real kick in the teeth to a marriage that must be truly strong to survive the rigours of gender reassignment.

    Clearly the consequences of this decision will need to be thought through – it is my personal belief that it was DWP and the pensions issues that was the true cause of the ‘marriage bar’ in the Gender Recognition Act, rather than any real issue of same sex marriage, so hopefully DWP can now change it’s mind on this point.

    The need to consider the consequences is borne out by the lack of clarity in the final part of the judgement in para 46 “It follows that, in my view, the Upper Tribunal erred in its decision, which must be reversed. I would allow the appeal. It seems best to embody this conclusion in some appropriate form of declaration, the exact terms of which can be best determined after counsel have considered a draft of this judgment.”

    Let’s hope the Government comes to a rapid decision that the marriage bar can be lifted in order to eliminate the costly complication to the equality laws that arise from having a group of people who have clearly gone through gender reassignment being treated as if they have not, just because they remain married. Given that they are still trying to work out how to respond to the Richards decision in 2006, I wouldn’t hold your breath! But who knows?

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