The Human Rights Commission has settled a case against the Department for Communities to back pay state pension entitlements to Frances Shiels. Frances received her Gender Recognition Certificate in February 2015. She then applied for her State pension in April 2015. She was advised by the Pension Service that it would only be backdated to the date of the Gender Recognition Certificate and not her 63rd birthday which caused her significant financial loss. The Department has now paid out to restore her full entitlements.
Frances Shiels commented:
It is important that the rights of transgender individuals are properly respected and that we can fully participate in society like everyone else.”
Chief Commissioner Les Allamby added:
“We are delighted with the settlement for Frances. We argued that the initial decision of the Pensions Service was discriminatory under the Human Rights Act and caused her a significant financial loss, we are happy this has now been fixed. The only factor preventing a full entitlement in this case was the requirement that transgender individuals should be unmarried. Northern Ireland is still the only part of the UK where this is required. The law needs to be amended to end this discrimination.”
In April 2019, the Commission entered into settlement discussions with the Department for Communities and agreed to settle the case on the basis that Frances was given the full amount that she would have received from her qualifying date.
The issue in this case was that Frances could not receive her pension as a woman until legal and administrative hurdles had been overcome, causing her financial loss. Therefore in this case a transgender woman was treated differently when trying to apply for a state pension in NI. We are unaware of how many more transgender women this may affect.
Notes to editors:
Facts of the case:
1. Frances Shiels received her Gender Recognition Certificate (GRC) from the Gender Identity Panel in February 2015. She then applied for her State retirement pension in April 2015. She was advised by the Pension Service that it would only be backdated to the date of the Gender Recognition Certificate and not her qualifying date. This caused financial loss to Frances.
2. Had the legislation not contained a requirement that an individual be unmarried before they could obtain a full Gender Recognition Certificate, Frances would have been able to obtain her GRC at an earlier date and prior to her birthday and thus would have been entitled to backdate her State Retirement Pension to the earlier date of her birthday. The only factor preventing her from backdating her State Retirement Pension to her birthday was the requirement that she should be unmarried. Northern Ireland is still the only part of the UK where this required.
Commission Arguments in the Case
1. Commissioners decided to support Frances Shiels case by initially sending a pre-action letter to the Department for Communities in February 2019. This is the first step in starting legal proceedings.
2. In its pre-action letter to the Department for Communities, the Commission argued that the decision of the Pensions Service was discrimination contrary to Directive 79/7 of the European Union, which guarantees equal treatment for men and women in the field of social security.
The Commission also argued a breach of the right to peaceful enjoyment of possessions (Article 1 of the First Protocol) and discrimination (Article 14) under the European Convention on Human Rights (ECHR).
3. The Commission asked that the Department for Communities rectify the situation by making the requisite payments to Frances Shiels.
Judgments relevant to the case
A judgment from the Court of Justice in Europe (MB v Secretary of State for Work and Pensions) which said that refusing a pension from the statutory pensionable age for persons of acquired gender because of their lack of a Gender Recognition Certificate was discriminatory. The case was brought in particular because the woman in question was religious and did not wish to apply for a divorce to receive a Gender Recognition Certificate. At the time of the case, same-sex marriage was unavailable in Britain.
The Commission’s Advice clinic
The Commission operates an advice clinic every Wednesday morning from 9.30am to 1pm. If you would like to make an appointment to discuss your case please call 028 90243987.
If you are unable to telephone us and would like to make an appointment please email us at firstname.lastname@example.org.
If we are unable to take up your case, we will try to refer you to a more appropriate agency.
The law in England, Scotland and Wales
The UK Government website provides the following information on Applying for a Gender Recognition Certificate:
“You can stay married if you apply for a Gender Recognition Certificate, unless your marriage is registered under the law of Northern Ireland.
You and your spouse must fill in a statutory declaration saying you both agree to stay married.
You’ll get an ‘interim certificate’ if you or your spouse do not want to remain married, or if your spouse does not fill in a statutory declaration. You can use the interim certificate as grounds to end the marriage.
If your marriage is registered in England or Wales and you have an interim certificate, you’ll only get a full certificate once you end your marriage.
If your marriage was registered in Scotland, you can use an interim certificate to apply to the sheriff court for a full certificate. You do not need to end your marriage first.”
09 Jul 2019