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Transgender pensions

Victory for transgender pension rights

Acting pro bono, Freshfields has helped a client claim her UK state pension based on her gender.

In the UK, women born before 6 April 1950 become eligible for the state pension once they turn 60, while men born before 6 December 1953 must wait until 65.

Our client, known as LW to preserve her anonymity, had been living as a woman since the 1980s, when she had gender reassignment surgery. LW claimed that she became entitled to the state pension at age 60, like any other woman.

The Department for Work and Pensions (DWP) denied LW’s claim owing to her not having a gender recognition certificate (GRC). Thus began LW’s campaign to reverse that decision and claim her state pension.

LW’s case was taken up in 2015 by partner Christopher Stothers while at his previous law firm. Christopher argued LW’s case successfully before the First-tier Tribunal that year, but the decision was overturned by the Upper Tribunal in 2017.

Her appeal proceedings were then stayed while another transgender pension right case, for MB (also represented by Christopher), was decided.

MB's parallel proceedings

MB, who was married at the time, began living as a woman and underwent gender reassignment surgery in the 1990s.

In 2004, the UK’s Gender Recognition Act came into force, which requires those who formally change their gender to obtain a GRC. However, MB could not do so – she and her wife did not want to end their marriage, but same-sex marriages were not allowed.

MB’s case critical for LW

On turning 60 in 2008, MB applied for a state pension but was refused due to the fact that she had no GRC and, according to the DWP, was therefore a man.

MB appealed the decision, latterly with Christopher’s help, through the UK’s tribunal and courts system. Seven years later, her case reached the Supreme Court, which was divided on whether the UK requirement that a transgender person be unmarried to qualify for the state pension contravened EU law. The Court therefore referred the case to the Court of Justice of the EU (CJEU), where in 2018, MB’s claim was ultimately successful.

It was on this basis that, in early 2019, LW was able to reach an out-of-court settlement with the DWP and bring her own litigation to an end.

LW’s missing contributions

The matter did not end there though.

LW was then told by the DWP that she was not entitled to the full state pension as a woman due to HM Revenue and Customs (HMRC), the UK government's tax-collection department, saying she had gaps in her record of 'Class 2' national insurance contributions (these are payments made by the self-employed to the government that, over time, determine whether they are entitled to the state pension and other state benefits.)

As a result, the DWP told LW that she would in fact be financially better off claiming a pension as a man. Given that this would almost render her previous battle with the DWP pointless, we dug into this fresh issue and ultimately persuaded HMRC that they had to let LW pay all her ‘missing’ contributions late. This not only boosted her pension significantly, but most importantly, finally allowed her to claim her state pension as a woman.

A satisfied pensioner

Expressing her gratitude to Freshfields, LW wrote: ‘My ability to contest these decisions owes much to the dedication and professionalism of Christopher. His work has been of the highest standard at every stage of the case, from the early plans and discussions right through to the hearings. The care and compassion he brings to the work made a significant difference to the self-esteem and rights of not only me but also the British transgender community as a whole.’

The positive impact of this work could in fact stretch far beyond the UK, with the MB and LW cases providing justification to re-examine previous rulings and thereby opening the door to greater recognition of gender equality across the EU.

As for Christopher, LW’s case adds to his long run of work on transgender pension disputes. ‘I first became involved entirely by chance in 2007. It’s one of the few areas of law where the government explicitly treated men and women differently, and so recognition of gender could be tested. I lost that first case, but was convinced the government was wrong. Since then, I’ve helped several individuals (including my first client) to be recognised as women by the government, and be paid their state pensions. Fascinating areas of law, righting wrongs and helping solve people’s problems – it’s what any young lawyer dreams of doing.’