The Court of Appeal (CA) has rejected a transgender person’s claim to be entitled to the female State pension at the age of 60.
The applicant, identified only as MB, underwent gender reassignment surgery in 1995 but decided as a Christian to stay married “in the sight of God” to her wife of 38 years and the mother of their two children. It was this decision that blocked MB's entitlement to the female State pension.
The CA held that MB’s refusal to annul her marriage meant that a full gender reassignment certificate could not be issued under the Gender Recognition Act 2004. As a result, MB “remains a man” in law and is not entitled to the female State pension from age 60. Once the provisions of Schedule 5 of the Marriage (Same Sex Couples) Act 2013 come into force, a gender recognition certificate can be issued without a marriage being annulled, but the provision is not retrospective and the change in the law will be too late to help MB.
Lord Kay said the CA accepted that its finding that the changes had come too late for MB might seem “a rather hollow point” as other male-to-female transsexuals who had reached 60 (and were no longer married) had established a right to the female State pension. It was only because Parliament had failed to engage earlier with the gender reassignment issue, that discrepancies had arisen and the changes to the law had occurred too late for MB to benefit from them.
With member choice in relation to all DC funds set to become more flexible after April 2015, trustees and administrators will have their work cut out providing member communications on the various options available and “sign-posting” members to the various forms of retirement guidance once it is available. DC members who assume responsibility for their own pension funds after age 55, and who elect to enter drawdown, must ensure that they understand the tax consequences of making high levels of withdrawal.