Hi all,

Had a query through on our advice line, and any help would be much appreciated.

Client is a female to male transsexual, who lives with his female partner. As far the local SSO are concerned they are living together as husband and wife, but the couple have made two separate claims. There's a whole bunch of other issues, but what I really need to find out about is:

What is his legal position for benefit purposes? Is he considered to be male or female? Does it make a difference if he has undergone gender reassignment surgery?

I am aware that the new Gender Recognition Act is making its way through Parliament, although it is not yet in force, and that this may alter the situation in the future. However, I would very grateful for any information concerning this issue under the law as it currently stands.

As always, any case law or legislation would be appreciated.

Thanks

Lee

The current legal position as far as I am aware, although others may know better than me, is that a person's current gender status is determined by what gender is recorded on the birth certificate.

So that if 2 people living together have the same gender on their birth certificates then they should be treated as separate claimants for benefit purposes.

This, of course, as most people already know, has its ups and downs. For some couples being recognised as a couple under the law is of prior importance, particularly when it comes to inheritance rights, being recognised as next of kin, etc. To others the extra money is more significant.

As we all know, the current law is a mess!

Regards
Paul

R(P)1/80 and R(P)2/80 are still the current position AFAIK and, in short, confirm that you are the gender you were born, or recorded as born.

Interestingly change of sex type is a reportable CoC for Tax Credits.

R(P)1/80 is available from the 'Cmmrs decisions on rightsnet' area of swopshop.

However, I have just checked Goodwin v U.K (ECHR), which has the effect of allowing the gender on the birth certtificate to be changed to current gender status.

This case was the driving force behind the gender recognition bill. I think that some argument could be constructed to attempt to show that social security law in this area is incompatible with article 14 (prohibition on discrimination) in conjunction with article 8 (respect for private and family life) of the HRA 1998.

What do others think?

Thanks for the help all.

I've had a look at the Goodwin case as well, and I agree there is a possible Art 14 argument regarding social security law.

The difficulty I have with this particular case is that the couple seem to be quite happy about being treated as two single claimants, but he is unwilling to inform the local SSO that he is transsexual. The SSO are therefore going to treat the claim as a joint claim, as on the face of things it looks like a LTAHAW case. Further, while the mortgage is in joint names, he would prefer housing costs with his IS to be paid in just his name, so as to avoid any eyebrow raising with the mortgage company.

The new GRA may address some of these problems anyway, but I'm not sure when it will be in force. A copy of the Act is available at the HMSO: http://www.legislation.hmso.gov.uk/acts/acts2004/20040007.htm

But at least now I have an idea of the current legal position, and I can get back to the client to see what we're going to do next. Thanks again for the help everyone.

Liberty have a pension case trundling through Commissioners at the moment.