Timbrell v Secretary of State for Work and Pensions [2010] EWCA Civ 701

[2010] EWCA Civ 701

Case No C3/2009/1903

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

CP/1261/2007

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22/06/2010

Before

LORD JUSTICE THORPE

LORD JUSTICE MOORE-BICK

LORD JUSTICE AIKENS

Between

CHRISTINE JENNIFER TIMBRELLAppellant

SECRETARY OF STATE FOR WORK AND PENSIONSRespondent

Ms Marie-Eleni Demetriou (instructed by Freshfields Bruckhaus Deringer LLP, London) for Appellant

Mr Jeremy Johnson (instructed by DWP/DH Legal Services, Litigation Division) for Respondent

Hearing Hearing dates : 4 March 2010

Judgment

[1]Ms Christine Timbrell was born a male on 17 July 1941. From her teenage years she felt that she should have been a girl. In her twenties she met Joy and they were married and had two children. Ms Timbrell became an accountant. In the late 1990s Ms Timbrell took advice from a consultant psychiatrist and she was treated for gender dysphoria. Then in October 2000, with the full knowledge and consent of Joy , Ms Timbrell underwent gender reassignment surgery. Joy and Ms Timbrell decided to continue to live together as a married couple. They remain so.

[2]On 17 July 2001 Ms Timbrell reached her 60th birthday. Just over a year later, on 6 August 2002, Ms Timbrell applied to the Inland Revenue National Insurance Contributions Office to receive her state pension, which she asked to be back-dated to her 60th birthday. The application was not dealt with promptly, but appears to have been shuffled between Her Majesty’s Revenue and Customs (“HMRC”) and the Department for Work and Pensions (“DWP”).

[3]On 1 July 2004, the Gender Recognition Act 2004 (“GRA”) was passed. It came into force as from 4 April 2005. I have set out relevant sections in Appendix C to this judgment and I shall have to consider some of its provisions in more detail below. But for the present the important thing to note is that the GRA creates a Gender Recognition Panel and that body has the power to grant to an applicant a “Gender Recognition Certificate”, recording that the applicant has changed gender and intends to continue to live until death in the acquired gender.

[4]Gender Recognition Certificates can either be interim or full. Certain conditions must be fulfilled before the Panel will grant either form of certificate. A married person who has changed gender and has otherwise fulfilled the statutory requirements will only be able to obtain a full Gender Recognition Certificate from the Gender Recognition Panel if the applicant has been granted a divorce. The GRA provides that a decree of nullity can be granted on the ground that an interim Gender Recognition Certificate has been issued to a party to the existing marriage. Once a divorce has been obtained on that ground, the Gender Recognition Panel must grant the applicant a full Gender Recognition Certificate and then the person’s gender becomes for all purposes the acquired gender. See sections 4(3), 5(1) and 9(1) of the GRA. Schedule 5 of the GRA stipulates that any question of whether a person is entitled to a retirement pension for any period after the Gender Recognition Certificate has been issued shall be decided as if the person’s gender had always been the acquired gender.

[5]On 27 April 2006, the First Chamber of the European Court of Justice (“ECJ”) gave its judgment on an application for a preliminary ruling in the case of Richards v Secretary of State for Work and Pensions.

Case C-423/04

; [2006] ECR 1-3585 Ms Richards, previously a married male, had undergone gender re-assignment surgery. She remained married thereafter. Ms Richards applied to the DWP for a pension from the age of 60. That was refused by the Secretary of State for the Department of Work and Pensions (“SSWP”), so Ms Richards appealed to a Social Security Commissioner. In October 2004 the Commissioner applied to the ECJ for a preliminary ruling on whether the SSWP’s refusal was lawful under the terms of Council Directive 79/7/ EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (“Directive 79/7/EC”).

[6]The ECJ held that upon the correct interpretation of Articles 4 and 7 of Directive 79/7/EC the refusal of a retirement pension to a male to female transsexual until the age of 65 was prohibited if that person would have been entitled to such a pension at the age of 60 had she been held to be a woman as a matter of national law. See question (1) posed at [19] of the ECJ’s judgment and the answer given at [38]. Effectively, therefore, the ECJ held that Ms Richards was entitled to receive a state pension from the age of 60.

[7]In March 2006 Ms Timbrell, knowing of the proceedings in the ECJ in the Richards case, made a further claim to the SSWP to have her state pension from her 60th birthday. On 11 April 2006 the SSWP decided that Ms Timbrell was entitled to a state pension, but only from her 65th birthday.

[8]Ms Timbrell appealed that decision to the Appeal Tribunal. It gave a decision on 20 November 2006. The Appeal Tribunal treated Ms Timbrell’s claim as having been made only in March 2006. It held that because she had not obtained a full Gender Recognition Certificate under the GRA, she was not entitled to legal recognition of her new gender and so not entitled to claim her state pension as a woman, ie. from the age of 60. The tribunal noted that the position might be different in respect of the period between Ms Timbrell’s 2002 claim and 3 April 2005, ie. the day before the GRA came into force. But it concluded that this period was not the subject of the proceedings before the Tribunal and so did not rule on it.

[9]Ms Timbrell appealed to what had by now become the Administrative Appeal Chamber of the Upper Tribunal (“the Upper Tribunal”). Prior to the hearing before the Upper Tribunal, the SSWP decided that Ms Timbrell had made a valid claim for a state pension on 21 August 2002 which had not yet been adjudicated upon. Then on 18 January 2008 the SSWP decided that Ms Timbrell’s claim of 21 August 2002 should be refused.

[10]However, the Secretary of State supported the appeal of Ms Timbrell to the Upper Tribunal, apparently accepting that(a) Ms Timbrell had made a valid claim in August 2002;

(b) the Appeal Tribunal’s decision that the requirements of the GRA had to be fulfilled before Ms Timbrell could claim a pension was wrong; and

(c) Ms Timbrell’s existing marriage should have no bearing on her right to a state retirement pension. The SSWP asked that the matter be remitted back to him.

[11]The Upper Tribunal decided otherwise. In her decision of 12 March 2009, Upper Tribunal Judge Jupp held that Ms Timbrell was not entitled to a state retirement pension before her 65th birthday because “she does not satisfy the criteria to be treated as a woman in all respects which, (subject to satisfaction of other legislative conditions) could entitle her to receive a Category A state pension at the age of 60 under Directive 79/7/EEC”.

[12]Ms Timbrell appeals to this court with the leave of the Upper Tribunal, which considered that the case raised an important point of principle, with which view I agree. The SSWP did not adopt the same stance before this court as had been taken before the Upper Tribunal and so opposed Ms Timbrell’s appeal. On 4 March 2010 we heard most helpful argument from Ms Marie Demetriou on behalf of Ms Timbrell and from Mr Jeremy Johnson on behalf of the Secretary of State. Judgment was reserved.

The Council Directive 79/7/EEC of 19 December 1978

[13]I have set out all 10 Articles of this Directive in Appendix A to this judgment. The key points to note about the Directive are, first, that its purpose is the progressive implementation of the principle of equal treatment of men and women in matters of social security and other “elements of social protection”, which Article 1 of the Directive called “the principle of equal treatment”. Article 1. Secondly, the Directive applies to all the working population, including those already retired and who are self-employed. Article 2. Thirdly, the Directive applies to “statutory schemes which provide protection against the following risks” which include “old age” Article 3. . Fourthly, because of the principle of “equal treatment” that means that there “…shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status, in particular or (sic) concerns – the scope of the schemes and the conditions of access thereto…..[and] the calculation of benefits….”. Article 4. Fifthly, the Directive imposes an imperative obligation on Member States to “…take the measures necessary to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished”. Article 5. Furthermore, Member States have to introduce “…into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply the principle of equal treatment to pursue their claims by judicial process, possibly after recourse to other competent authorities”. Article 6.

[14]Article 7 of the Directive states that it shall be without prejudice to the right of Member States to exclude from the scope of the Directive “…(a) the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits”. Article 7. Lastly, Article 8 of the Directive stipulates that Member States must bring into force “…the laws, regulations and administrative provisions necessary to comply with this Directive within six years of its notification” and inform the Commission when they have done so. Therefore, the UK had until the end of 1984 to ensure that its laws complied with the Directive.

[15]I have set out the relevant UK statutory provisions relating to a person’s entitlement to a Category A pension (ie. the “retirement” pension) in Appendix B to this judgment. They can be broadly summarised as follows: first, a person is entitled to a Category A pension if the person is over “pensionable age”. Section 44 of the Social Security Contributions and Benefits Act 1992. A man born before 6 April 1959 attains pensionable age when he reaches the age of 65 years. A woman born before 6 April 1950 attains pensionable age when she attains the age of 60. See: section 122(1) of the Social Security Contributions and Benefits Act 1992 and Rules (1) and (2) of paragraph 1 of Schedule 4 to the Pensions Act 1995.

[16]Because Ms Timbrell was born before 6 April 1950, then the two possible “pensionable ages” for her are either 65 or 60, depending on which gender is to be assigned to her at the relevant time. The words “man” and “woman” used in the 1992 and 1995 Acts are not themselves further defined in those Acts. However, in the House of Lords’ decision in Bellinger v Bellinger,

[2003] 2 AC 467

. promulgated in April 2003, their Lordships had unanimously concluded that Mrs Bellinger, a transsexual female who had been born and registered as a male at birth, could not validly contract a marriage with another male. Despite the fact that Mrs Bellinger had successfully undergone gender re-assignment surgery and treatment, the House of Lords held that, for the purposes of the Matrimonial Causes Act 1973, she must be treated as being of the sex she was born with, ie. a male. See: [36] per Lord Nicholls of Birkenhead; [64] per Lord Hope of Craighead; Lords Hobhouse of Woodborough, Scott of Foscote and Rodger of Earlsferry also took the same view.

[17]It was accepted before us by both Mr Johnson and Ms Demetriou that, by parity of reasoning, the words “man” and “woman” in the 1992 and 1995 Acts must mean the biological gender of a person that had been determined (and registered) at birth. They both accepted that, because of the decision in Bellinger v Bellinger, it was not possible, as a matter of judicial decision, to treat a person who had undergone gender re-assignment surgery as having the opposite gender to that assigned to that person at birth.

[18]The decision in the Bellinger case and its applicability to the present issue has three consequences, all of which concern the law prior to the GRA coming into effect. First, English law prior to the GRA did not recognise a change in a person’s gender brought about by gender re-assignment surgery. Secondly, prior to the GRA it was necessary to take a person’s gender as assigned at birth to determine that person’s gender so as to decide when that person attained ‘pensionable age” for the purposes of the 1992 and 1995 Acts. Therefore, thirdly, this means that, apart from the GRA, Ms Timbrell has to be regarded as a “man” in order to decide when she reached “pensionable age” for the purposes of being entitled to a Category A or “retirement” pension under the UK pensions legislation.

[19]In the case of Richards v Secretary of State for Work and Pensions,

Case C-423/04

[2006] ECR 1-3585. the European Court of Justice had to rule on the consequences of the inability of the English law, as it stood before the GRA took effect, to recognise changes in gender brought about by gender re-assignment surgery. In particular it had to decide whether the statutory provisions about attaining pensionable age were discriminatory against those who had undergone such surgery and so whether the UK was in breach of its obligations under Directive 79/7. But before I deal with that important case, I should refer in some more detail to the GRA.

The Gender Recognition Act 2004

[20]The GRA was passed in the wake of the ECtHR’s decision in Goodwin v United Kingdom.

(2002) 35 EHRR 18

The applicant in that case had been born a male and had undergone gender re-assignment surgery. She alleged that the failure of the UK to make changes to a number of official records which still listed her as male, such as her social security and national insurance records and her pension and retirement age records, constituted a violation of her rights under

Article 8 of the ECHR

. The applicant also alleged breaches of Article 12. The ECtHR reviewed earlier decisions involving the UK and the problems of transsexuals in the UK, particularly in the light of the majority decision of the Court of Appeal in Bellinger v Bellinger.

[2002] Fam 150

. Dame Elizabeth Butler-Sloss and Robert Walker LJ had held (as did the House of Lords subsequently) that the marriage between the two parties was invalid, because for the purposes of the law they were not to be regarded as man and woman. Thorpe LJ dissented. It noted that the UK government at that stage had no plans for reform to deal with the problems for transsexuals, although the problems themselves were recognised. The ECtHR concluded [89] – [93] of the judgment. that the UK government could no longer claim that the matter fell within its “margin of appreciation”. Therefore the failure of the UK to provide means whereby the applicant could obtain legal recognition of her gender re-assignment meant that there had been a breach of her Article 8 rights to private life.

[21]As I have already noted, the relevant sections of the GRA are set out in Appendix C to this judgment. The Act provides that a person over the age of 18 “of either gender” can apply for a gender recognition certificate on the basis of living “in the other gender”. The application will be dealt with by the Gender Recognition Panel. Section 1(1) and (3). There are also provisions for obtaining a Gender Recognition Certificate when a person has changed gender under the laws of another country or territory outside the UK. Section 2 sets out the circumstances when the Panel must grant an application for a gender recognition certificate and section 3 details the evidence needed for an application. Section 4 stipulates that if the application is successful, the Panel must grant a full gender certificate if the applicant is not married. However, if the applicant is married, then the Panel must grant an interim certificate. Sections 4(1)-(3). In the latter case a full gender certificate will only be granted once a court has granted a decree of nullity on the ground that an interim gender certificate has been issued to a party to the marriage. In that case the court itself must, on granting the decree, issue a full gender recognition certificate. Section 5(1).

[22]Once a full gender recognition certificate has been issued to a person , that person’s gender becomes for all purposes “the acquired gender”. That will not affect things done or events that have occurred before the full gender certificate was granted. But the acquired gender will apply for the interpretation of all legislation and other documents made either before after the certificate was issued. Section 9(1) and (2).

[23]Schedule 5 of the GRA deals with “Benefits and Pensions”. Paragraph 7 of the Schedule deals with “Category A retirement pensions”. Paragraph 7(1) provides that the question of whether a person is entitled to a Category A retirement pension after a full gender recognition certificate has been issued and, if so, the rate of pension, is to be decided as if that person’s gender had always been the acquired gender. Thus, under paragraph 7(3) a former man who acquires female gender who has attained the pensionable age of a woman but not the age of 65, will be treated as having obtained the pensionable age of a woman upon the grant of a full gender recognition certificate.

The decision of the ECJ in Richards v Secretary of State for Work and Pensions

[24]Ms Richards was born on 28 February 1942 as a male. She underwent gender re-assignment surgery in May 2001. On 14 February 2002 she applied to the SSWP for a retirement pension, to be paid from 28 February 2002, that is from her 60th birthday. (As already noted, under the UK pensions legislation, a woman is entitled to her retirement pension from her 60th birthday). The SSWP refused the application on 12 March 2002 on the grounds that the claim had been made more than four months before Ms Richards had reached her 65th birthday, ie. the date on which a man is entitled to his retirement pension. Ms Richards appealed to the Social Security Appeal Tribunal, alleging that this refusal was a breach of her rights under

Article 8 of the ECHR

and that it was discrimination contrary to Article 4 of Directive 79/7.

[25]The Social Security Commissioner stayed the appeal and submitted two questions to the ECJ for a preliminary ruling. The two questions were: “(1) Does Directive 79/7 prohibit the refusal of a retirement pension to a male-to-female transsexual until she reaches the age of 65 and who would have been entitled to such a pension at the age of 60 had she been held to be a woman as a matter of national law? (2) If so, from what date should the Court’s ruling on Question 1 have effect?”.

[26]In its judgment the ECJ first noted two general principles. Thus, it recalled that it was for Member States to determine the conditions under which legal recognition was given to the change of gender of a person. [21]. For this proposition, the Court referred to its previous decision of KB v National Health Service Pensions Agency and Secretary of State for Health,

Case C-117/01

[2004] ECR 1-541, at para 35. Further, the Court stated that the scope of Directive 79/7 is not confined to discrimination based on the fact that a person is of one or other sex. Its scope is broader. The ECJ held that: “In view of the rights which it seeks to safeguard, the scope of that directive is such as to apply to discrimination arising from the gender re-assignment of the person concerned”. [24].

[27]Next, the Court identified the basis on which Ms Richards claimed she was subject to discrimination. It was “…Ms Richards’ inability to have the new gender which she acquired following surgery recognised with a view to the application of the Pensions Act 1995”. [28]. The Court noted that, unlike women whose gender was not the result of gender re-assignment surgery who could obtain their retirement pension at 60, “…Ms Richards is not able to fulfil one of the conditions of eligibility for that pension, in this case that relating to retirement age”. [29].

[28]The judgment of the ECJ continued, at [30] and [31]:

“30. As it arises from her gender reassignment, the unequal treatment to which Ms Richards was subject must be regarded as discrimination which is precluded by Article 4(1) of Directive 79/7. 31. The Court has already found that national legislation which precludes a transsexual, in the absence of recognition of his new gender, from fulfilling a requirement which must be met in order to be entitled to a right protected by Community law must be regarded as being, in principle, incompatible with the requirements of Community law (see KB, A reference to the ECJ decision of KB v National Health Service Pensions Agency and Secretary of State for Health, Case C-117/01 [2004] ECR 1-541: see footnote 24 above. paragraphs 30 to 34).”

[29]The UK had argued that the inability of Ms Richards to obtain her pension was not discriminatory because it fell within the ambit of Article 7(1) of the Directive, which excluded from the Directive’s scope “the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits”. That argument was rejected by the ECJ. [37].

[30]In [38], the ECJ then answered the first question that had been posed by the Social Security Commissioner: “38. It is clear from the foregoing that Article 4(1) of Directive 79/7 must be interpreted as precluding legislation which denies a person who, in accordance with the conditions laid down by national law, has undergone male – to – female gender reassignment, entitlement to a retirement pension on the ground that she has not reached the age of 65, when she would have been entitled to such a pension at the age of 60 had she been held to be a woman as a matter of national law”.

[31]In answer to the second question, the ECJ said that there was no need to limit the temporal effect of the judgment.

[32]The ECJ therefore effectively ruled that the UK legislation prior to the GRA coming into force was discriminatory and so precluded by Article 4(1) of Directive 79/7.

[33]The argument of Ms Demitriou is as follows:(i) Ms Timbrell made her claim for a Category A or retirement pension on 21 August 2002, before the GRA was passed or came into force;

(ii) therefore, the question of whether she is entitled to claim her pension or whether any UK legislation or decisions that prevent her from doing so are discriminatory (and so contrary to Directive 79/7) must be determined according to the law before the GRA;

(iii) the decision of the ECJ in the Richards case applies to Ms Timbrell because it is materially indistinguishable from the present case;

(iv) therefore the refusal of the SSWP to grant Ms Timbrell a retirement pension as a woman as from 21 August 2002 is discriminatory and contrary to Article 4(1) of Directive 79/7;

(v) contrary to the view of the Upper Tribunal, the GRA cannot be given any kind of retrospective effect;

(vi) the effect of Article 4(1) of Directive 79/7 as interpreted by the ECJ in the Richards case is that the SSWP’s decision to refuse Ms Timbrell a pension as from 21 August 2002 is contrary to her Community law rights.

(vii) Ms Timbrell is entitled to rely directly on the provisions of Article 4(1) of Directive 79/7, as interpreted by the ECJ in Richards. It is a provision of Community law which is sufficiently precise to enable an individual to rely in a national court upon its provisions and any obligations imposed by it on Member states, if applicable to the facts of this case.

(viii) Thus, following Richards, this court must give effect to Directive 79/7 to override any national provision (in a statute or by case law) which is incompatible with that Directive, so as to give effect to its provisions insofar as they define rights which individuals are able to assert against the United Kingdom as a Member state.The SSWP must abide by that decision and award the Ms Timbrell a retirement pension as from her 60th birthday.

[34]Mr Johnson for the SSWP submits that:(i) a person is only entitled to a Category A or retirement pension at 60 if that person is a woman;

(ii) a person’s gender is determined at birth and can only be changed if done so under the procedure set out in the GRA;

(iii) Ms Timbrell was born a male and has not applied to change gender under the provisions of the GRA;

(iv) Ms Timbrell is not entitled to a pension at age 60 as a matter of Community law unless she satisfies the conditions of national law for being treated as a woman , which she does not, because Ms Timbrell has not complied with the GRA;

(v) Richards does not decide that there must be a framework of national law that recognises gender re-assignment for the purposes of determining an individual’s rights, eg. to a retirement pension;

(vi) if that is not so, then the consequence is that there has been a breach of the Directive, entitling Ms Timbrell to damages and she has made no such claim.

(vii) It is impossible to say that if there had been any national framewok before the GRA it would have been different to the terms of that Act. Therefore, because the GRA complies with Directive 79/7 and is not incompatible with the European Convention on Human Rights, Ms Timbrell’s damages would be nil, because she would have suffered no loss by the UK’s failure not to introduce a GRA-type framework earlier. This is because Ms Timbrell has remained married and does not contemplate obtaining a decree of nullity on the grounds of gender reassignment, so Ms Timbrell could never obtain a full gender recognition certificate and, without it, she would never be entitled to a Category A pension at age 60.

[35]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.

[36]In my view there are three issues for decision in this court.(1) Should this court consider Ms Timbrell’s rights to a retirement pension without recourse to the provisions of the GRA?

(2) If so, what is the effect of Directive 79/7 in the light of the decision of the ECJ in the Richards case?

(3) If Directive 79/7 applies to the facts of this case and it is held that the UK legislation and case law (prior to the GRA) is discriminatory with regard to acquired gender and pension entitlement, what is the consequence for Ms Timbrell’s claim to a pension from her 60th birthday.

[37]Ms Timbrell made a claim for a retirement pension on 6 August 2002, following the ECtHR’s decision in Goodwin. She was then 61. The GRA had, obviously, not reached the statute book. Its provisions are not retrospective, save to the limited extent provided for in Schedule 4, paragraph 7, noted above. Indeed, section 9(2) states expressly that even the grant of a full gender recognition certificate does not affect things done or events occurring before the certificate is issued. The issue of the certificate only affects the interpretation of statutes and laws (even if passed prior to the issue) that are relevant after the issue of the certificate.

[38]Therefore, it seems to me, the issue of Ms Timbrell’s rights, or lack of them, as from 6 August 2002 to 4 April 2005, have to be judged on the basis of the law and the legislation in force at the time. It is not correct to look at the law applicable at that time through spectacles that are coloured by the subsequent enactment of the GRA and the terms of its provisions. They have no relevance to the law or events prior to its passing or the date when it came into effect. Insofar as the Upper Tribunal took a different view on this issue, it was wrong to do so.

What is the effect of Directive 79/7 in the light of the Richards case?

[39]It is common ground that, prior to the GRA, English law had no mechanism by which the law would recognise the fact that a person could and had acquired a different gender. It was therefore impossible for a person who had acquired a different gender to obtain the legal rights associated with the acquired gender. Effectively the law, as declared in Beringer v Beringer, was “born (and registered at birth) a man, always a man” and vice-versa. In Goodwin the ECtHR had held that this inability of the English law to recognise and give effect to a change of gender through gender re-assignment surgery was a violation of a person’s Article 8 rights. But in KB v National Health Service Pensions Agency and Secretary of State for Health,

Case C-117/01

[2004] ECR 1-541: see [35] the ECJ had also stated that it was for each Member State to determine the conditions under which legal recognition is given to the change of gender of a person who had successfully undergone gender re-assignment surgery. That principle was re-iterated in Richards. At [21].

[40]It is clear that Directive 79/7 applies to the statutory pension schemes set out in the 1992 and 1995 Acts. They must be “statutory schemes which provide protection against…old age” within Article 1. Article 4 of the Directive requires that “…there shall be no discrimination whatsoever on ground of sex either directly or indirectly…in particular or (sic) concerns….the scope of the schemes and the conditions of access thereto”. In my view that must mean that there has to be no discrimination whatsoever on the ground of sex, either directly or indirectly with regard to the scope of the Category A pensions or the conditions of access to them, subject to the conditions of Article 7. That entitles Member States to “…exclude from the scope of the Directive the determination of pensionable age for the purposes of granting old age and retirement pensions….”.

[41]It seems to me that the critical question is whether Directive 79/7, in particular Article 4,applies to a situation where, as was the case prior to the GRA, English law and legislation had no means at all of giving legal recognition to a change of gender of a person who had successfully undergone gender re-assignment for the purposes of seeing whether that person has reached retirement age for the purposes of obtaining a retirement pension. Was the UK bound to ensure that, with regard to those who had acquired a different gender, there would be no discrimination whatsoever, either direct or indirect, on the ground of sex, with regard either to the scope of the Category A pension scheme or the conditions of access to that scheme?

[42]I think that the wording of [38] in the ECJ’s decision in Richards provides a clear and definitive answer. Paragraph [38] states in terms that Article 4(1) of Directive 79/7 is to be interpreted as precluding legislation which denies a person who has (legally) undergone gender re-assignment surgery from entitlement to a retirement pension because she has not reached the age of 65, when that person (who had become a woman by the gender re-assignment surgery) would have been entitled to that pension at the aged of 60 had she been held to be a woman as a matter of national law. In short, as I read [38] in Richards, Article 4(1) precludes (on the grounds that it is either directly or indirectly discriminatory) a situation where there is no legislative or other legal means to give recognition to a person’s acquired gender. The decision also established that the exceptions laid down in Article 7(1) did not apply because the issue in the case was not the fact that the UK legislation provided for different pensionable ages for men and women, but that the UK legislation did not deal with the situation where a person had acquired a different gender and wished to exercise legal rights according to that acquired gender. See [32] – [37].

[43]Mr Johnson is correct in arguing that the decision in Richards does not indicate what kind of national legislation should be in place or what sort of conditions ought to be satisfied for the recognition of an acquired gender by means of gender re-assignment. That is because, as [31] of Richards recognised, that is a matter for national law, not for the ECJ to determine. But that cannot alter the fact that Richards effectively held that a total lack of any kind of legislative or legal framework in UK law to enable acquired gender to be recognised so as to enable a person who has acquired a new gender to exercise the rights to obtain a retirement pension according to existing legislation constituted discrimination within Article 4(1) of Directive 79/7.

[44]The effect of my conclusion on Issue Two is that the UK failed to implement Directive 79/7 within the time permitted so far as concerned acquired gender and rights to pensions, in the way set out at [38] of Richards. Contrary to Article 5 of the Directive, the UK had, in this regard, failed (within the time allowed) to take the necessary measures to implement the Directive to ensure that any UK national laws, regulations and administrative provisions that are contrary to the principle of “equal treatment”, as defined in Article 4(1) and interpreted in Richards, are abolished. The obligations set out in Article 4(1) and in Article 5 are, in my view, in precise and unequivocal terms. It follows, from long-established case law of the ECJ that an individual may invoke the provisions of a directive which, from the viewpoint of content, are unconditional and sufficiently precise, against all national legislation which does not conform with it. Case 8/81: Becker v Finanzamt Münster-Innenstadt

[1982] 1 CMLR 499

at [25].

[45]The result is, in my view, that the SSWP cannot rely on the provisions of the 1992 and 1995 Act and the House of Lords decision in Bellinger v Bellinger to deny Ms Timbrell the right to a Category A pension as a woman as from her 60th birthday. By virtue of the provisions of Article 4(1) of Directive 79/7, as interpreted by the ECJ in the Richards case, the SSWP is obliged to recognise that Ms Timbrell had a right, by virtue of her acquired gender, to a retirement pension from her 60th birthday. Ms Timbrell is not, as Mr Johnson argues, simply entitled to damages for the UK’s failure to implement Directive 79/7 fully in the sphere of pension entitlement for those who have acquired genders. To limit Ms Timbrell to such a right would fail to give proper effect to the Directive and the rights of an individual that the ECJ has said will flow from a Member State’s failure to implement a Directive whose provisions are in sufficiently clear, precise and unconditional terms.

Conclusion and disposal

[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.

[47]I agree.

[48]I also agree. APPENDIX A 49. COUNCIL DIRECTIVE 79/EEC “……… Article 1 The purpose of this Directive is the progressive implementation, in the field of social secure and other elements of social protection provided for in Article 3, of the principle of equal treatment for men and women in matters of social security, hereinafter referred to as ‘the principle of equal treatment’. Article 2 This Directive shall apply to the working population - including self-employed persons, workers and self-employed persons whose activity is interrupted by illness, accident or involuntary unemployment and persons seeking employment - and to retired or invalid workers and self-employed persons. Article 3 1. This Directive shall apply to:(a) statutory schemes which provide protection against the following risks; — sickness, — invalidity, — old age, — accidents at work and occupational diseases, — unemployment;

(b) social assistance, in so far as it is intended to supplement or replace the schemes referred to in (a). 2. this Directive shall not apply to the provisions concerning survivors’ benefits nor to those concerning family benefits, except in the case of family benefits granted by way of increases of benefits due in respect of the risks referred to in paragraph 1(a). 3. With a view to ensuring implementation of the principle of equal treatment in occupational schemes, the Council, acting on a proposal from the Commission will adopt provisions defining its substance, its scope and the arrangements for its application. Article 4 1. the principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular or concerns; — the scope of the schemes and the conditions of access thereto, — the obligation to contribute and the calculation of contributions, — the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits. 2. The principle of equal treatment shall be without prejudice to the provisions relating to the protection of women on the grounds of maternity. Article 5 Member States shall take the measures necessary to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished. Article 6 Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply the principle of equal treatment to pursue their claims by judicial process, possibly after recourse to other competent authorities. Article 7 1. this Directive shall be without prejudice to the right of Member States to exclude from its scope: (a) the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits; (b) advantages in respect of old-age pension schemes granted to persons who have brought up children; the acquisition of benefit entitlements following periods of interruption of employment due to the bringing up of children;

(d) the granting of increases of long-term invalidity, old-age, accidents at work and occupational disease benefits for a dependent wife;

(e) the consequences of the exercise, before the adoption of this Directive, of a right of option not to acquire rights or incur obligations under a statutory scheme. 2. Member States shall periodically examine matters excluded under paragraph 1 in order to ascertain, in the light of social developments in the matter concerned, whether there is justification for maintaining the exclusions concerned. Article 8 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive within six years of its notification. They shall immediately inform the Commission thereof. 2. Member States shall communicate to the Commission the text of laws, regulations and administrative provisions which they adopt in the field covered by this Directive, including measures adopted pursuant to Article 7(2). They shall inform the Commission of their reasons for maintaining any existing provisions on the matters referred to in Article 7(1) and of the possibilities for reviewing them at a later date. Article 9 Within seven years of notification of this Directive, Member States shall forward all information necessary to the Commission to enable it to draw up a report on the application of this Directive for submission to the Council and to propose such further measures as may be required for the implementation of the principle of equal treatment. Article 10 this Directive is addressed to the Member States. Done at Brussels, 19 December 1978. For the Council The President H.D. GENSCHER” APPENDIX B Article 1 Article 2 Article 3 — sickness, — invalidity, — old age, — accidents at work and occupational diseases, — unemployment; Article 4 — the scope of the schemes and the conditions of access thereto, — the obligation to contribute and the calculation of contributions, — the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits. Article 5 Article 6 Article 7 Article 8 Article 9 Article 10 For the Council H.D. GENSCHER” 50. The Social Security Contributions and Benefits Act 1992 “…….. 44 Category A retirement pension (1) A person shall be entitled to a Category A retirement pension if – (a) he is over pensionable age; and [(b) he satisfies the relevant conditions or condition] and subject to the provisions of this Act, he shall become so entitled on the day on which he attains pensionable age and his entitlement shall continue throughout his life. ……… 122. ........... [“pensionable age” has the meaning given by the rules in paragraph 1 of Schedule 4 to the Pensions Act 1995;] …….. ” Pensions Act 1995 “SCHEDULE 4 [EQUALISATION OF AND INCREASE IN PENSIONABLE AGE FOR MEN AND WOMEN] PART 1 PENSIONABLE AGES FOR MEN AND WOMEN 1. The following rules apply for the purposes of the enactments relating to social security, that is, the following Acts and the instruments made, or having effect as if made, under them: the Social Security Contributions and Benefits Act 1992, the Social Security Administration Act 1992 [the Pension Schemes Act 1993 (c 48), [the State Pension Credit Act 2002 and Part 1 of the Welfare Reform Act 2007]]. Rules (1) A man [born before 6th April 1959] attains pensionable age when he attains the age of 65 years. (2) A woman born before 6th April 1950 attains pensionable age when she attains the age of 60. (3) A woman born on any day in a period mentioned in column 1 of [table 1] attains pensionable age at the commencement of the day shown against the period in column [(4) A woman born after 5th April 1955 but before 6th April 1959 attains pensionable age when she attains the age of 65.] ……..” “SCHEDULE 5 BENEFITS AND PENSIONS PART 1 INTRODUCTORY 1 This Schedule applies where a full gender recognition certificate is issued to a person. PART 2 STATE BENEFITS ……. Category A retirement pension 7 (1) Any question— (a) whether the person is entitled to a Category A retirement pension (under section 44 of the 1992 Act) for any period after the certificate is issued, and (b) (if so) the rate at which the person is so entitled for the period, is to be decided as if the person’s gender had always been the acquired gender. (2) Accordingly, if (immediately before the certificate is issued) the person— (a) is a woman entitled to a Category A retirement pension, but (b) has not attained the age of 65, the person ceases to be so entitled when it is issued. (3) And, conversely, if (immediately before the certificate is issued) the person— (a) is a man who has attained the age at which a woman of the same age attains pensionable age, but (b) has not attained the age of 65, the person is to be treated for the purposes of section 44 of the 1992 Act as attaining pensionable age when it is issued. (4) But sub-paragraph (1) does not apply if and to the extent that the decision of any question to which it refers is affected by— (a) the payment or crediting of contributions, or the crediting of earnings, in respect of a period ending before the certificate is issued, or (b) preclusion from regular employment by responsibilities at home for such a period. (5) Paragraph 10 makes provision about deferment of Category A retirement pensions ……. [(b) he satisfies the relevant conditions or condition] Pensions Act 1995 [EQUALISATION OF AND INCREASE IN PENSIONABLE AGE FOR MEN AND WOMEN] PART 1 PENSIONABLE AGES FOR MEN AND WOMEN Rules BENEFITS AND PENSIONS PART 1 INTRODUCTORY PART 2 STATE BENEFITS Category A retirement pension APPENDIX C GENDER RECOGNITION ACT 2004 Applications for gender recognition certificate (1). A person of either gender who is aged at least 18 may make an application for a gender recognition certificate on the basis of— (a) living in the other gender, or (b) having changed gender under the law of a country or territory outside the United Kingdom. (2). In this Act “the acquired gender”, in relation to a person by whom an application under subsection (1) is or has been made, means— (a) in the case of an application under paragraph (a) of that subsection, the gender in which the person is living, or (b) in the case of an application under paragraph (b) of that subsection, the gender to which the person has changed under the law of the country or territory concerned. (3). An application under subsection (1) is to be determined by a Gender Recognition Panel. (4). Schedule 1 (Gender Recognition Panels) has effect. (1). In the case of an application under section 1(1)(a), the Panel must grant the application if satisfied that the applicant— (a) has or has had gender dysphoria, (b) has lived in the acquired gender throughout the period of two years ending with the date on which the application is made, (c) intends to continue to live in the acquired gender until death, and (d) complies with the requirements imposed by and under section 3. (2). In the case of an application under section 1(1)(b), the Panel must grant the application if satisfied— (a) that the country or territory under the law of which the applicant has changed gender is an approved country or territory, and (b) that the applicant complies with the requirements imposed by and under section 3. (3). The Panel must reject an application under section 1(1) if not required by subsection (1) or (2) to grant it. (4). In this Act “approved country or territory” means a country or territory prescribed by order made by the Secretary of State after consulting the Scottish Ministers and the Department of Finance and Personnel in Northern Ireland. (1). An application under section 1(1)(a) must include either— (a) a report made by a registered medical practitioner practising in the field of gender dysphoria and a report made by another registered medical practitioner (who may, but need not, practise in that field), or (b) a report made by a chartered psychologist practising in that field and a report made by a registered medical practitioner (who may, but need not, practise in that field). (2). But subsection (1) is not complied with unless a report required by that subsection and made by— (a) a registered medical practitioner, or (b) a chartered psychologist, (3). And subsection (1) is not complied with in a case where— (a) the applicant has undergone or is undergoing treatment for the purpose of modifying sexual characteristics, or (b) treatment for that purpose has been prescribed or planned for the applicant, (4). An application under section 1(1)(a) must also include a statutory declaration by the applicant that the applicant meets the conditions in section 2(1)(b) and (c). (5). An application under section 1(1)(b) must include evidence that the applicant has changed gender under the law of an approved country or territory. (6). Any application under section 1(1) must include— (a) a statutory declaration as to whether or not the applicant is married, (b) any other information or evidence required by an order made by the Secretary of State, and (c) any other information or evidence which the Panel which is to determine the application may require, (7). The Secretary of State may not make an order under subsection (6)(b) without consulting the Scottish Ministers and the Department of Finance and Personnel in Northern Ireland. (8). If the Panel which is to determine the application requires information or evidence under subsection (6)(c) it must give reasons for doing so. (1). If a Gender Recognition Panel grants an application under section 1(1) it must issue a gender recognition certificate to the applicant. (2). Unless the applicant is married, the certificate is to be a full gender recognition certificate. (3). If the applicant is married, the certificate is to be an interim gender recognition certificate. (4). Schedule 2 (annulment or dissolution of marriage after issue of interim gender recognition certificate) has effect. (5). The Secretary of State may, after consulting the Scottish Ministers and the Department of Finance and Personnel in Northern Ireland, specify the content and form of gender recognition certificates. (1). A court which— (a) makes absolute a decree of nullity granted on the ground that an interim gender recognition certificate has been issued to a party to the marriage, or (b) (in Scotland) grants a decree of divorce on that ground, (2). If an interim gender recognition certificate has been issued to a person and either— (a) the person’s marriage is dissolved or annulled (otherwise than on the ground mentioned in subsection (1)) in proceedings instituted during the period of six months beginning with the day on which it was issued, or (b) the person’s spouse dies within that period, (3). That period is the period of six months beginning with the day on which the marriage is dissolved or annulled or the death occurs. (4). An application under subsection (2) must include evidence of the dissolution or annulment of the marriage and the date on which proceedings for it were instituted, or of the death of the spouse and the date on which it occurred. (5). An application under subsection (2) is to be determined by a Gender Recognition Panel. (6). The Panel— (a) must grant the application if satisfied that the applicant is not married, and (b) otherwise must reject it. (7). If the Panel grants the application it must issue a full gender recognition certificate to the applicant. Consequences of issue of gender recognition certificate etc. (1). Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman). (2). Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards). (3). Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation. …….