I came across a recent decision from the Court of Appeal (Timbrell v Secretary of State for Work and Pensions [2010] EWCA Civ 701 - http://www.lawreports.co.[...]WP.html). This concerned a transwoman, Christine Timbrell, who underwent SRS in 2000, at the age of fifty-nine. She subsequently applied for a retirement pension in 2002 but was refused on the grounds that she did not have a Gender Recognition Certificate (GRC), and was for the purpose of entitlement to state retirement pension still male, and therefore not entitled to receive a retirement pension prior to her sixty-fifth birtthday. Ms. Timbrell was unable to apply for a certificate because she refused to divorce her wife, a precondition of the application.

The Court of Appeal held that the claim to a pension was made two years before the Gender Recognition Act (GRA) came into effect, and that therefore the provisions of the Act, and its procedures for the award of a certificate, were not relevant to the determination of the claim. In the light of the European Directive 79/7/EEC which required member states to implement legislation to deal with the issue of pension rights for persons acquiring a gender, refusing a pension to Ms Timbrell was held to have been unlawful. Her appeal was allowed, and a retirement pension awarded from the age of sixty.

** The above summary of the facts of the case, and basis of decision is mine, and may be flawed - I'm no lawyer **

The interesting feature, to me, was that the Court of Appeal appears to have determined here that Ms. Timbrell was unequivocally a female for the statutory purpose of claiming a pension, at least prior to the GRA in 2004. If the GRA has the effect that someone in identical circumstances to Ms Timbrell, but born five years later, would be unable to claim, being legally seen as male by reason of her lack of a GRC, then the Act has effectively removed rights from some transwomen rather than conferring them.

I'd welcome an opinion from our members, who have rather more legal know-how and experience than I!

Hugs,

Judith

Hi Lucy,

Thank you for your take on this - I think your point is well made concerning the Act's effect of 'levelling the playing field' in terms of the rights it confers. I also agree that the apparent contradiction which you point out between the gender status deemed for pension purposes and that legally available at the relevant time seems hard to justify. I suspect that consideration will be given to a further appeal, though whether that will be sanctioned in these times of straitened public resources remains to be seen.

Hugs,

Judith

I think it’s probably impossible to have one act that suits every transsexual in the UK. Had the woman in question applied for a pension at 60 instead of 65 after the Act had come in she would indeed have had no grounds for appeal (“The provisions in the Gender Recognition Act 2004 were not retrospective”).
It’s easy to suggest the Act removes rights from some individuals, but basically they can’t have it both ways. The Act ties in with the laws on same sex marriage, AKA civil union; you can’t be female AND be married to a female. So if you’re already married when you apply for legal status as a woman, you must first get divorced, then if you wish, enter into a civil union with your former wife. It’s a bit of a shame that some of us are “required” to do this, but it’s the only legal way one can “stay married” and become legally female. I do believe there is method in the madness.
No woman in the UK can marry another woman, that’s always been the case, but a civil union gives them the same rights as any married couple. One could argue that the civil union is unnecessary and same-sex couples should be allowed to marry, but this is not a transgender-related argument; it’s basically the Church’s problem with homosexuality.
It is an interesting legal anomaly, Judith, and I’m inclined not to agree with the appeal decision. I can’t quite understand that the basis of the appeal is that she made the application before the Act came in; at this time there was no legal provision for us to be seen as legally female, nor could we be married to another woman, yet she seems to now have both legal status as a woman (as far as her pension age is concerned) and is still legally married to a woman. That was never allowed in law, and isn’t now. Odd.
As it stands, the new laws and their requirements put transwomen on an equal footing with natal women. Isn’t that what we want?
Seems fair to me.
xx

I fell foul of the GRA in that my GRC was not granted until September despite my birthday being May and my having completed the 2 years RLE by mid June.
So logically as I'd done the RLE by June I should have been allowed pension from that date rather than having to stay on basic dole - so I was out £375 times 3 months or the best part of £1,000.
I've been wondering about appealing my case to the GRPanel and may decide to yet.