Arnold & Porter Obtains Referral Of UK Transgender Pension Rights Case To EU Court Of Justice

LONDON, August 11, 2016 -- A team of attorneys from the firm’s London office is representing pro bono a retired trans woman, who went to the Supreme Court of the United Kingdom over a claim to receive her state pension from the UK Department of Work & Pensions (DWP) from the age of 60 (when she would be entitled as a woman) rather than 65 (when she would be entitled as a man). As a result of the firm’s efforts, the Supreme Court has announced it is referring the case to European Court of Justice, recognizing that it raises a difficult question of EU law.

This test case began in 2008 when the UK government refused to pay the firm client's pension. Although she had undergone gender reassignment surgery from male to female years many years earlier, in 2008 gender recognition certificates were only issued to people who were unmarried (same-sex marriage was not then permitted in the UK). Arnold & Porter’s client and her spouse did not want to divorce, including for religious reasons, and she was therefore unable to obtain a certificate. However, the lower courts had all agreed with the government that the client was not entitled to a pension.
  
Christopher Stothers, lead attorney in the case said: “We are pleased with the result because 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 recognizing gender reassignment. If the government is right in this case, the UK's Gender Recognition Act 2004 would restrict recognition for the purposes of state pensions by requiring divorce or annulment, even though that wasn't required before the Act.”
 
This is one of four test cases in which Arnold & Porter’s is representing trans clients on a pro bono basis in the UK. More broadly, over the last few years, attorneys from our London and Brussels offices have sought to improve the DWP’s approach to recognizing gender reassignment in relation to state pensions. The work of the team raised highly complex issues relating to the interplay between EU law, human rights and UK social security law. In particular, Arnold & Porter has sought to ensure that the DWP does not rely on UK social security provisions to restrict the application of anti-discrimination law and refuse the retrospective payment of pensions.