Steve Webb MP, Minister of State
Department for Work and Pensions
Caxton House
Tothill Street
London
SW1H 9NA

07 November 2011

Dear Steve,

Pension rights for trans-women who choose not to annul their marriage to obtain a Gender Recognition Certificate

I am writing regarding my concerns about the pension rights of a group of trans-women who do not have a Gender Recognition Certificate (GRC) because they are married.
As you no doubt know, trans-people who married before the Gender Recognition Act 2004 (GRA) are not permitted to get a GRC if they remain married as this would then result in same-sex marriage.
I followed the Bill at the time, and know that the rule in the GRA on annulment of marriage was solely designed to prevent same sex marriage. The decision was primarily taken as there was a fear that the whole GRA might be lost if the Bill also legalised same-sex marriage. It was a move that campaigners for the GRA accepted with pragmatic reluctance. However, it is extremely disappointing that the rule is still being used to deny the payment of a pension. No one is disputing that the small number of trans-women involved in these cases are women - it is just that for very good reason they do not have legal recognition.
As I'm sure you can understand there are some trans-people who decided to forgo legal recognition of their true gender in order to preserve the vows made to their spouses. The key point is that, for some, annulment is simply not an option they can even contemplate as they cannot break the solemn vows that they made in marriage. For people in this category, it is frankly cruel to ask them to choose between their marriage vows and legal recognition of their gender.
However, DWP has determined that the enactment of the GRA allows it to insist a transsexual pension applicant enters into an annulment to obtain a GRC before granting a pension guaranteed under Directive 79/7/EEC. It is my understanding that under Article 4 of that Directive people should not be discriminated against on marital status on any grounds whatsoever, yet this is precisely what is happening.
The Richards Ruling
You will no doubt be aware of the ‘Richards Ruling' given by the European Court of Justice (ECJ) that specifically brings gender reassigned women under the scope of the aforementioned Directive. Given that post-GRA, there are no pension arrangements for gender reassigned women who remain married and therefore do not have legal recognition, it appears that DWP takes the position that the Richards ruling has no effect post-GRA. Does the DWP have case law that specifically sets aside the ECJ ruling in Richards for post GRA pension applicants? If so, I should be grateful for details and if you could also advise whether there are circumstances in which national statute or case law can set aside the provisions of an EU Directive.
The DWP should be willing to take other evidence of their gender into account as it is totally unfair for the Government to argue that the GRA provides an avenue for all trans-women to acquire their pension rights. Furthermore, it is not at all clear to me that the Government is complying with EU law on this issue.
It seems to me that the current challenges being made against the DWP are highly likely to go to the ECJ for a determination on whether the UK can set aside the ECJ ruling in Richards and discriminate against gender reassigned women on grounds of marriage. It seems hard to see how the Government could win. Surely it is better to settle the matter now and limit the inevitable costs of hearings in the UK Tribunal Service and at the ECJ?
It has been suggested to me that the reason DWP is continuing to insist that couples annul their marriages for a trans woman to obtain treatment as a woman for pension purposes, is the fear that the Government could be guilty of maladministration in relation to couples who did annul their marriages so that one partner could get a GRC and a pension. Is failure to comply with EU law on this issue a concern that you share?
Finally, I should be grateful if you could confirm that the DWP has given full consideration to the effects of EU law in relation to this matter and provide information to demonstrate this. I hope that you agree that it cannot be acceptable for this discrimination to continue against this small group of trans-women.
Yours sincerely,

Caroline Lucas, MP, Brighton Pavilion