Changing sex and pensions

JUNE SALMON of Barker Gotelee Solicitors explains a ruling on the pension entitlement of those who undergo gender reassignment surgery

It is proposed to increase the ages for both sexes in the future, a decision criticised by employers who believe that it will hamper the efforts of businesses to recover from the recession and cause a rift among staff.

Retirement ages are constantly under public scrutiny and are being challenged. In the case of Christine Timbrell, born Christopher, the Court of Appeal held she was discriminated against by being subjected to male retirement laws.

Christine had a sex change operation in 2000, and changed from a male to a female but did not divorce her wife.

She was notified by the Department for Work and Pensions (DWP), that she would not be able to obtain a pension until the age of 65. Ms Timbrell argued that she was being discriminated against by being subjected to male retirement laws.

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Christopher Timbrell was married when the operation was carried out, but failed to divorce his wife after the operation. The couple continued to live together. Whilst this was permitted, it meant that Timbrell was caught by a provision in the law whereby her new gender status was not recognised.

She was refused the pension under the 2004 Gender Recognition Act, which entitles transsexuals to enjoy the full status of their gender.

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The new sex of married transsexuals is only recognised if their marriages are annulled or dissolved.

Ms Timbrell applied to the HM Revenue and Customs National Insurance Contributions office for her State Pension in 2002, which she asked to be backdated to her 60th birthday, a year earlier. However this was refused.

Lord Justice Aikens, gave the ruling of the three Appeal Judges. He 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”.

He said that a legal framework to allow the law to recognise gender change and obtain a pension was discrimination. The Judge said that this meant that the DWP could not deny Timbrell the right of a pension as a woman from her 60th birthday.

The abolition of the default retirement age is estimated to provide the Exchequer with an extra �79million in tax revenues in the first year alone and �132m extra each year after a decade.

It is anticipated from 2016 that the state retirement age for men will increase to 66. The retirement age for women will also increase; by 2020 it will be 65. The anticipation is that as life expectancy continues to increase, so will the state retirement age for both sexes.

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