Married transwoman pension victory

[Holly1948]

As I read this case reported in the Guardian, my interpretation is that a transwoman
who can get an interim GRC but is denied a full GRC for reason of a pre-existing marriage
can nonetheless get a state pension from age 60 (if born prior to 1950). And back pay.

Not real justice, but money is money. Roughly GBP25,000 to 30,000 total over five years may be involved.

http://www.guardian.co.uk/uk/feedarticle/9138132

Guardian, UK


Sex-change woman wins pension fight

Press Association, Tuesday June 22 2010


A married man who became a woman has won her battle to receive a
pension from the age of 60.

Christopher Timbrell, born in 1941 , changed her name to Christine in
2000 after surgery to alter her gender.

In 2002 she applied to the Inland Revenue National Insurance
Contributions Office for her state pension, which she asked to be
backdated to her 60th birthday a year earlier but her new gender
status was not recognised in law because she has not divorced her
wife, Joy.

Ms Timbrell, an accountant from Sutton Coldfield in the West Midlands,
met her wife when she was a man in his 20s and they had two children
during their 42-year marriage. His sex-change operation was carried
out with the full knowledge and consent of the wife and they continue
to live together as a married couple.

Most transsexuals, under 2004 legislation, are entitled to enjoy the
full status of their new gender. But the new law introduced an
important caveat - married transsexuals could apply to have their
gender recognised only if their marriages are annulled or dissolved.

Ms Timbrell took her case to the Court of Appeal after the Department
of Work and Pensions (DWP) said she was entitled to a state pension
from the age of 65, the usual age for a man.

Marie-Eleni Demetriou, representing her at a hearing in March, said
the rule under the Gender Recognition Act that she must end her
marriage before her gender is recognised is a "disproportionate"
violation of her human right to respect for her home and family life.

Jeremy Johnson, for the DWP, recognised the "difficult situation" Ms
Timbrell found herself in and the "harsh choice" she faced in whether
to end her happy marriage.

Lord Justice Aikens, giving the ruling of the three appeal judges,
said that before the Gender Recognition Act, English law had no way of
dealing with a person who had changed gender, meaning "once a man,
always a man".

But he said that a total lack of legal framework to allow UK law to
recognise gender change and obtain a pension was discrimination. The
judge said that this meant that the DWP cannot deny Ms Timbrell the
right to a pension as a woman as from her 60th birthday.

Copyright (c) Press Association Ltd. 2010, All Rights Reserved.


© Guardian News and Media Limited 2010

[Pollik]

http://suspire.wordpress.com/

SEX-CHANGE WOMAN WINS PENSION FIGHT

guardian.co.uk

A Court of Appeal decision means that Christine Timbrell will have her pension backdated to the age of 60.

What makes this a landmark case is that Christine is a male to female transsexual.

Some transsexual people (not most, despite what the Guardian reports) will have applied under the Gender Recognition Act 2004 (GRA) for a Gender Recognition Certificate (GRC). This certificate entitles the holder to be regarded as their acquired gender for almost all legal purposes, including pension. The GRA was rightly hailed as a sea change in transgender rights. Wrongly, it is also hailed as being the answer to all transgender issues.

The GRA has a number of significant and widely accepted flaws. One of them is that, in order to apply for a full GRC, it necessary for a married applicant to have their marriage annulled or dissolved. One can see, up to a point, why it was felt necessary to include this restriction. Without it, we would have legal women married to legal women and legal men to legal men. At the time, the Civil Partnership Bill was also in the pipeline and many religious organisations opposed both pieces of legislation. It seems that the government had no intention of allowing gay marriages and it would, therefore, have been seen as necessary to include the restriction in the GRA to prevent it occurring as a side issue. Indeed, some believe that the instruction came from the very top, Tony Blair, himself, and a recent Catholic Convert.

The decision of the Court will have more impact on older male to female transsexuals. Changes are already in place to change the retirement age for women – you can see more details on the government’s website. These changes mean that, over a period of time, the statutory retirement age for women will be raised from 60 to 65, the same as for men. However, all bets are off if the current Coalition discussions about pensions start to bear fruit.

So this decision is a pretty big deal for the older male to female transsexual. The decision is less beneficial to female male transsexuals who may find that their pensions are deferred from 60 to 65.

Before we get too excited, the financial benefits of the decision are likely to be short term as pensions for men and women are brought into line with one another.

However, I am more excited by other possible ramifications of the decision, of which I see two.

The first is this. Lord Justice Aikens, giving the ruling, said “that a total lack of legal framework to allow UK law to recognise gender change and obtain a pension was discrimination” and that, therefore, the DWP cannot deny Ms Timbrell the right to pension as a woman. I wonder if this also opens the door for all transsexual people in pre-existing marriages to apply for and obtain GRCs (subject to other criteria in the GRA) since to refuse issue of a GRC would also amount to discrimination. I rather doubt that this would happen automatically, but perhaps the decision in this case could set a precedent for future legal action.

The second is this. If the door opens as envisaged above, a natural outcome will be that we will have legal same sex marriages, as a side issue of the GRA. And if those same sex marriages become legal, where is the moral argument against any same sex couple seeking to get married, rather than enter into a civil partnership? Or, indeed, any heterosexual couple seeking to enter into civil partnership, which is not currently permitted?

It might seem logical, but due legal process is a fickle beast and legal interpretations are a game that lawyers play. Today, more than ever before, trying to unravel conflicts within legislation, both national and international, can be an impossible task and there can be much (too much?) reliance of the skills of individual legal practitioners rather than being able to dispense justice. But this might be a topic for a different blog.

[Alison]

As I read this case reported in the Guardian, my interpretation is that a transwoman
who can get an interim GRC but is denied a full GRC for reason of a pre-existing marriage
can nonetheless get a state pension from age 60 (if born prior to 1950). And back pay.

I beg to disagree. I believe that the GRA resolved the position so the precedents from the case are limited. Anyone wishing to rely would need to have made a claim for pension prior to the GRA.

I know you believe that the issues in Goodwin were not resolved by the GRA, however, the process exists. It is personal choice not to make use of that process. Further, the failure of the UK to acknowledge same-sex marriage has been deemed acceptable. Requiring the ending of a marriage to prevent the creation of a same sex marriage is a proportional response to the issues. The denial of legal status in the acquired gender only arises because of the choice not to follow the process provided by the GRA.

Challenge will not be successful if brought by the person who has transitioned. There are grounds for the non-transitioning partner.

[Pollik]

In other words, the legal position is an uncertain mess? That is a good use of highly paid legal professionals.

I don't agree that being denied a GRC because of a pre-existing marriage is a choice, for many, any more than my gender identity is.