And renounce your faith.
MB is 68 years old, married, and a Christian. Under the law, as a woman she should have received her state pension at the pensionable age for women, 60 years old. It was refused to her by the UK’s Department of Work and Pensions (DWP), and this has been upheld by the UK Court of Appeal. Why? Because MB was born with the biological sex of a man, married and fathered a family, and has not had her marriage annulled by a Gender Recognition Certificate (GRC).
MB married in 1975, but did not start living as a woman until 1991, and underwent gender reassignment surgery in 1995. As a Christian, she prefers to remain married to her wife, with whom she has a family, “under the eyes of God”. Under the 2004 Gender Recognition Act, transgender people in the UK gained the right to have their gender legally recognised by a GRC. However, a GRC may not be issued to any transgender person who has not had their marriage annulled on the basis of gender change.
When MB applied for a state pension upon reaching the age of 60 in 2008, the DWP refused her application on the grounds that she is still legally a man, as defined by biological sex on her birth certificate. She took her case to the Court of Appeal, who in 2014 upheld the DWP decision. Undeterred, she has taken the case to the Supreme Court, the highest civil court in the UK. The Supreme Court has found itself “divided” on the issue, and has now decided to consult the Court of Justice of the European Union (CJEU), to advise their decision. Deputy President of the Supreme Court, Lady Hale, stated “Since there is no CJEU authority directly in point, it refers the question for their guidance”.
The entire case highlights problems with two things in the UK; the controversial Gender Recognition Certificate, and pensionable age.
GRC’s have long been a point of contention in the UK. When a GRC is issued, it is a form of legal recognition of gender. However, they are only issued under certain criteria. The “Standard Route” for this is;
you’re 18 or over
you’ve been diagnosed with gender dysphoria (discomfort with your birth gender) – this is also called gender identity disorder or transsexualism
you’ve lived in your acquired gender in the UK for at least 2 years
you intend to live in your acquired gender for the rest of your life
But it does not end there. Every single application for a GRC goes before a panel, usually made up of cisgender heterosexual men, who can indeed refuse to issue a GRC if they see fit.
The GRC puts young transgender people at a distinct disadvantage; old enough to have sex or even marry at 16 or over, they cannot in fact be legally recognised as the gender they identify with until 18 or older. This disparity has also led to transgender young offenders being placed in prisons according to gender identified by biological sex as given on their birth certificate, purely because they cannot get a GRC until over 18 and have lived under their acquired gender for 2 years.
Many transgender people are also opposed to GRCs on the grounds that they are unwelcome governmental intrusion into private lives. It should also be noted that birth certificates have no legal basis as means of identification, and placing transgender offenders is thereby technically illegal. In their campaign for the 2016 Scottish Parliamentary Election, the Scottish National Party promised to change the entire process in Scotland and make it much easier for transgender and genderfluid people to officially change their gender status. I have yet to see them make any movement upon this, and it may be time to drop my local Member of the Scottish Parliament an email.
Now the case of MB has proven another flaw with the GRC; that one shall not even be issued unless the transgender person has a marriage under their birth-assigned gender annulled. MB has no wish to annul her family. I have no doubt she loves her wife and family, and as a devout Christian, she sees her marriage as sanctified by God. Now, as an atheist, I obviously say phooey to that. I am not MB however, and as much as I may disagree with her, I have to be the first to stand up to her human right to freedom of religion.
The former UK Prime Minister, David Cameron, continually maintained that we lived in a “Christian country” (not Scotland, dear ~ 39% “No Religion” at the last census, and rising). His successor, Theresa May, is equally a devout Christian. Whilst there is no written constitution in the UK, the entire Westminster government is linked to the Church of England, which is the established church of England, Wales and Cornwall (not Scotland or Northern Ireland), with the monarch, Queen Elizabeth II, as head of that church, and 26 Church of England clerics, the “Lords Spiritual”, sitting in the House of Lords. The English judiciary is likewise closely tied to the established church.
Therefore, England is officially a Christian country, and MB, who is an English citizen and subject of her monarch, is having her rights infringed. She is being denied her rights as a woman, she is being denied her rights as transgender person, and she is being denied her rights as a Christian.
I am therefore very pleased that the Supreme Court is to ask advice on this case from the CJEU. The judges there will have to look at the matter in the context of the European Convention on Human Rights (ECHR). This is a legally-binding declaration of human rights, which is itself based heavily upon the United Nations Declaration of Human Rights.
Article 9 of the ECHR states:
Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
MB’s identity as a Christian and her marriage do not in any way infringe public safety, public order, health or morals, and do not present any threat to the rights and freedoms of others. However. insisting that MB annuls her marriage and applies for a GRC is an obvious infringement upon her freedom for thought, conscience and religion.
Article 8 states:
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 12 states:
“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right”
Articles 8 and 12 are contentious, but are closely tied. It seems to me, however, that in insisting that MB annul her marriage and obtain a GRC, the DWP and the courts are a, infringing her private life, and b, infringing her right to marry. Moreover, an officially Christian state is effectively telling a transgender woman to renounce her deeply-held religious faith.
The ECHR is of course not attached to the EU, and there is nothing in law to say that EU member states must abide by it’s articles (likewise, many states contravene the UN Universal Declaration of Human Rights on a daily basis). The CJEU does however carry the weight to enforce judgements based upon the ECHR, and if they decide that MB has indeed had her rights infringed, then as the UK is an EU member (we’ve not left yet dears) the DWP and the Supreme Court shall have no choice but to adhere to their ruling, and give MB her pension, backdated to her 60th birthday.
But the entire case throws into sharp relief the entire question over pensionable age in the UK. Currently the official ages for qualifying for the state pension are 60 for women, and 65 for men. These ages date back to when men traditionally performed heavy labour, whereas women did “less taxing” jobs in offices. Please dears, as one with 20 years of admin jobs behind her, I can attest to the emotional stress of office work. It leaves you completely drained and can lead to nervous breakdowns and early deaths. The entire concept is flawed and deeply sexist. My former female partner has worked in environments, including physically ejecting violent bar customers, and in situations where I would have gone to pieces, or just screamed and simply fainted. I’m much more of a fragile girlie than she is.
The UK pension age also fails to recognise the hard jobs which some women did ~ and do ~ which are traditionally considered women’s work. How many men ruined their eyesight, gave themselves back problems and drove needles through their fingers, as my dear mother did through countless hours of leaning over a sewing machine? How many managed the heavy lifting and sweaty conditions of a laundry? How many have been on their hands and knees as cleaners? And just how many added all the tasks of being a homemaker and bringing up children into that? Yes, heavy labour is exhausting, hazardous to health, dangerous, and life shortening ~ every bit as much as the roles which a great many women have traditionally done, and some still do to this day, and at the end of their working day run a home and bring up a family, purely as a labour of love with no financial reward.
So, what happens if someone is genderfluid? An asshat caller to a radio show firstly stated that men might get gender reassignment surgery purely to get their pension early. Sure, pal, cisgender men are really going to have their meat and two veg cut off, purely to get the paltry state pension. Like that’s ever going to happen. He then did throw in the question that what if a genderfluid person tries to claim their pension as a woman at age 60? That’s actually a very good point, as much as the asshat way he put it; “What if someone says I’ve just turned 60 and I feel like a woman. I want my pension?”
In our more enlightened age, where gender identity is finally becoming much more widely recognised, there is an all-too-obvious answer to this, and that is to have a uniform pensionable age across the board, for all genders. That is indeed coming. From 2020 the pension age for both men and women shall be 66, which is to rise to 67 from 2026 to 2028. That is much fairer, as it shall truly recognise gender equality, for women, for men, for transgender people, and for the genderfluid (but sadly not this genderfluid person ~ I’m a pauper and will have to keep working until I drop).
But from the moment women gained equality in the workplace, it should ever have been so. And had it been thus, then MB would not be fighting for her pension, 8 years after she should have received it.
Xandra 