MB transitioned from male to female but decided as a Christian to stay married to wife of 38 years

This article is more than 6 years old

This article is more than 6 years old

A transgender person's claim to be entitled to receive the female state pension at the age of 60 has been rejected by the appeal court.

MB, who cannot be identified, transitioned from male to female 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 – a decision which blocked MB's entitlement to the pension.

Appeal judge Lord Justice Maurice Kay described MB as the victim of "a real misfortune" and said changes in the law had occurred "too late for her to benefit from them".

The judge added it was "in the nature of such changes" in social attitudes that they would "come too late for some".

Lord Justice Kay, sitting with Lord Justice Aikens and Lord Justice Underhill, rejected an appeal by MB against a decision of the Department for Work and Pensions refusing a female pension.

The judge said MB was now aged 66 and while still a man married the mother of her two daughters.

She began to live as a woman in 1991 and underwent gender reassignment surgery four years later.

In April 2005 trans people acquired the right to apply for a full "gender recognition certificate" under the 2004 Gender Recognition Act.

But a certificate could not be issued to a married person who did not have their marriage annulled on the basis of their gender change.

The judge said: "The appellant does not wish to have her marriage annulled. She and her wife have lived as a married couple for 38 years and do not wish to change.

"Also, as a Christian she says that she and her wife feel married in the sight of God.

"Accordingly she has not applied for a gender recognition certificate, and so far as the law is concerned she remains a man."

When she reached her 60th birthday in May 2008, she applied for a state pension but was refused on the basis that she was a man and would have to wait for the male pension at 65.

The appeal judges unanimously declared that the refusal did not contravene the principle of equal treatment and was not discriminatory.

The judge said the position would be different once provisions of Schedule 5 of the Marriage (Same Sex Couples) Act come into force, when trans people will be able to obtain a full gender recognition certificate without having to have their marriage annulled, provided the marriage partner consents.

But with regard to MB, "those provisions are not retrospective and will not therefore give her any right to a pension from the age of 60".

Lord Kay said the court accepted that its finding that the changes had come too late for MB might seem "a rather hollow point" as other male-to-female trans people who had reached 60 had established a right to the female state pension.

He said that was only because Parliament had failed to engage earlier with the gender reassignment issue so that the courts were constrained by EU legislation to step into the gap.

Because of the resulting discrepancy some trans people had had the "good fortune" to obtain the pension and it was not the result of any injustice to MB –"but I fear it will not feel that way to her".