The UK Supreme Court has referred the case of a retired transgender woman, whose pension was withheld by the Department of Work & Pensions because she refused to divorce her wife, to the court of justice of the European Union (CJEU).

UK Supreme Court

The woman in question, referred to as MB, went through gender reassignment surgery from male to female some years ago. She turned 60 before same-sex marriage was legalised, at which time gender recognition certificates were only issued to people who were unmarried.

Because MB didn’t want to divorce, she did not get a certificate and so the DWP only paid her state pension from the age of 65, the male age of retirement, rather than from age 60, the retirement age for women at that time. MB therefore sued the DWP for five years of her pension.

US firm Arnold & Porter worked pro bono on the case along with barristers including Lord Pannick QC and Kerry Bretherton QC. The team argued that the DWP’s reliance on domestic UK pensions legislation was in contravention of discrimination EU laws.

The lead lawyer on the case, partner Christopher Stothers, said: “We are pleased with today’s outcome. This case has been running since 2008. The Government refused to pay MB her pension when she turned 60, and the three lower tribunals and courts who looked at this agreed.

“However, the Supreme Court has now recognised that this is a difficult question on which the judges are divided, and so has referred a question to the European Court of Justice in Luxembourg where the question will be answered before returning to the Supreme Court in 18-24 months.”

He added: “Although the numbers are small (those affected potentially in the hundreds, with cases in the tens), this is an important test of the UK’s commitment to diversity and inclusivity. The UK has historically been very slow off the mark in respecting and recognising gender reassignment.

“It is ironic to say the least that the Department of Work & Pensions’ position is now that the Gender Recognition Act actually restricts recognition by requiring divorce or annulment, when that wasn’t required before the Gender Recognition Act.”

Arnold & Porter was recognised as the UK’s best performing firm for pro bono in 2015.