The Gender Recognition Act 2004 did not have retrospective effect, and since the United Kingdom had failed to implement the relevant Community law Directive within the time permitted so far as concerned acquired gender and rights to pensions, an individual could invoke the Directive as its provisions were unconditional and precise.

The Court of Appeal so held when allowing an appeal by the claimant, Christine Timbrell, against the decision of Upper Tribunal Judge Jupp dated 12 March 2009 in which she had dismissed the claimant’s appeal from the Appeal Tribunal dated 20 November 2006 which had decided to dismiss her appeal against the decision taken by the defendant, the Secretary of State for Work and Pensions, that the claimant was entitled to a state pension, but only from her 65th birthday.

AIKENS LJ said that the claimant was born a male but underwent gender reassignment surgery in October 2000 at the age of 59. In 2002, and after turning 60, she applied to receive her state pension. She was refused on the ground that she was only entitled to a state pension from her 65th birthday, the age at which a man was entitled to claim. The provisions in the Gender Recognition Act 2004 were not retrospective. Therefore the issue of the claimant’s rights was to be judged on the basis of the law and the legislation in force at the time that the claim was made. At that time, English law and legislation had no means at all of giving legal recognition to a change of gender of a person who had successfully undergone gender reassignment for the purposes of seeing whether that person had reached retirement age for the purposes of obtaining a retirement pension. In Richards v Secretary of State for Work and Pensions [2006] ICR 1181 the First Chamber of the European Court of Justice considered art 4(1) of Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment of men and women in matters of social security (OJ 1979 L6, p24). It held that art 4(1) precluded, on the grounds that it was either directly or indirectly discriminatory, a situation where there was no legislative or other legal means to give recognition to a person’s acquired gender. The total lack of any kind of legislative or legal framework in UK law to enable acquired gender to be recognised so as to enable a person who had acquired a new gender to exercise the right to obtain a retirement pension according to existing legislation constituted discrimination within art 4(1). The UK failed to implement Directive 79/7/EEC within the time permitted so far as concerned acquired gender and rights to pensions. Contrary to art 5 of the Directive the UK failed to take the necessary measures to implement the Directive to ensure that any UK national laws, regulations and administrative provisions that were contrary to the principle of equal treatment, as defined in art 4(1) and interpreted in the Richards case, were abolished. The obligations set out in art 4(1) and art 5 were in precise and unequivocal terms. It followed that an individual could invoke the provisions of a Directive which, from the viewpoint of content, were unconditional and sufficiently precise, against all national legislation which did not conform with it. It followed that the Upper Tribunal had erred and its decision was to be reversed.

MOORE-BICK and THORPE LJJ agreed.