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Lynne Jones: I, too, thank my hon. Friend the Member for City of York (Hugh Bayley) for his work on the issue of pensions justice for transsexual people and their spouses, prompted by the injustice that they will be forced to dissolve their marriage if the transgendered person is to be able to realise their human rights in that status.

I am not entirely convinced by the argument that a statutory requirement, as in new clause 2, would impose significant complexity on the pensions industry. The Government's record on simplification of pensions policy is not entirely good in that regard. Having said that, I also want to thank the Minister for the co-operation that she and her Department have given my hon. Friend. I hope that the guidance note will provide sufficient incentive to all pension providers to ensure that people in the unique position of being forced to dissolve their marriage are protected and retain their pension rights. Because of the small numbers involved, this is not particularly financially demanding of pension schemes, although it is possible that some might be in very small pension schemes and the trustees might be pleased to save themselves what they might consider a considerable burden of paying out a pension in the event of the decease of a spouse in a former marriage involving a transgendered person.

As the hon. Member for Daventry (Mr. Boswell) has said, the guidance note proposal goes a considerable way towards alleviating some of the anxiety, but I am not entirely convinced that it would not have been better either for the proposals laid down in new clause 2 to be accepted or for the Government to consider whether it is necessary to require couples to dissolve their marriage before a transperson can have a gender recognition certificate.

Mr. Hogg: I have three questions, but before I come to those, I want to congratulate the hon. Member for City of York (Hugh Bayley), who has been addressing a serious problem, for which the House is grateful.

First, the hon. Gentleman is relying on guidance—practice directions. When trustees come to construe a trust, however, they have legal obligations. I am far from certain that guidance, or practice direction, would relieve them of their obligations under the trust if the trust were fairly clear in its interpretation. I suspect that statutory intervention might be required.

My second point relates to public sector pension schemes. I may be wrong, but my understanding is that many of those schemes are statutory in origin, relying on statutory instruments. In that case, the duties of a trustee are constrained by the language of the statutory instrument in question, and statutory intervention rather than guidance would be needed to alter the obligations of a trustee in respect of a public-sector trust.

My third point is rather different. I have been looking again at schedule 4, and asking myself what would be the effect on a marriage of the acquisition of a new
 
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gender. I note that the original marriage is voidable, not void: unless the parties go to court to have it annulled, the original marriage remains valid. I assume that, as a consequence, if a party whose spouse has acquired a different gender does not want the marriage annulled—it being voidable rather than void—the original marriage will remain subsisting, and the parties' rights will be defined with reference to the original pension scheme. I realise that that is a technical point, and I am sorry if I have not made it clear to the Minister. She is stirring in her seat, and I shall be happy to give way to her if I have not.

The Parliamentary Under-Secretary of State for Work and Pensions (Maria Eagle): We have had a short, sharp but erudite debate, for which we should thank my hon. Friend the Member for City of York (Hugh Bayley). As I listened to him answering questions from all comers, it was as if he was still a social security Minister, and I felt that I might be redundant. His ability to answer so many questions—I shall return to some of those that remain—shows how deeply he has thought about an issue which, although it arose from a constituency case, is replicated around the country, albeit in only a small number of instances. The speed and depth of his responses demonstrate that he has examined the matter closely, and his amendments tabled in Committee and on Report make it clear that he is not a bad parliamentary draftsman either. We have seen worse, sometimes from parliamentary counsel—although I shall probably suffer as a result of that comment.

The amendments are similar to those tabled by my hon. Friend in Committee. They are narrower, in that they relate simply to a married couple who must divorce for one member to obtain a gender recognition certificate, but intend to stay together. They are, however, broader in that they refer to all property rights rather than just private pension rights.

Mr. Hogg: I realise that I am coming to the argument rather late and may have misunderstood the position—in which case I apologise—but my understanding of schedule 4, which I think governs the effect of an acquired gender on a subsisting marriage, is that it is voidable, not void. In other words, no party is driven to take a divorce by reason of the acquisition of the gender; it is merely that the party is entitled to go for an annulment.

3.45 pm

Maria Eagle: Although the right hon. and learned Gentleman's definition of voidable, as opposed to void, is certainly right, the person who is acquiring the new gender cannot get the interim certificate that enables him or her to get legal recognition until there is a divorce. It is in that sense that my hon. Friend the Member for City of York and others have said here and in Committee that the law requires a divorce. I hope that that clarifies the way in which the legislation will work. It does not turn on whether the marriage is voidable or void; one will not get the interim certificate without having a divorce.

Lynne Jones: May I just clarify one point? I think that my hon. Friend means that one cannot get a full
 
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recognition certificate without a divorce. The interim certificate is granted before the divorce, purely in recognition that that person has transgendered. My understanding is that that interim certificate gives either party to the marriage the right to annul that marriage.

Maria Eagle: I thought that that was what I said; if I did not, my hon. Friend has done me a favour by clarifying the point. I hope that that satisfies the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) on that specific point. I shall return to some of his other points.

I am trying to emphasise the fact—as did my hon. Friend the Member for City of York—that the new clause and amendment are about the very small group of people, even within the transgendered community, who are married and wish to stay together once there is final recognition in the acquired gender. That will be a small number of people—we have heard such figures as 40 or 50 bandied around. However, as my right hon. Friend the Member for Birkenhead (Mr. Field) and the hon. Member for Daventry (Mr. Boswell) made clear, that does not take away the fact that the issue is still pretty important to that small number of people, whom we are in effect requiring to divorce if one party to their marriage wishes to have their legal right to be recognised in their acquired gender. I recognise that the issue is important, as did my hon. Friend the Member for City of York.

The Government's position on these issues has not changed. It is a fundamental principle of the Bill that once a legal change in gender is secured, the person must be treated for all purposes as being of the acquired gender. It cannot be right in a Bill that intends to give legal recognition to a person's change in gender then to start treating that person in the old gender for some purposes and in the new gender for others. That is what leads to some of the issues that have been raised here about financial disadvantage that might arise because someone simply acquires a human right, which the Bill exists to enable them to do. That is the nub of all the problems and issues that are before us. However, the Government still believe that it would be wrong to start to make exceptions to the Bill's general principle that once the acquired gender has been legally acquired, that person is to be treated in all circumstances and cases as being in the acquired gender, not the old one.

My hon. Friend the Member for City of York referred to the useful meetings that we had. Although they were held under the auspices of the Department, I pay tribute to him for playing a dynamic part in ensuring that they happened. There was a meeting of the National Association of Pension Funds, the Association of British Insurers and others with my hon. Friend on 29 March. Short though our debate on this issue was, we discussed such a myriad of different potential circumstances—different pension schemes, different ages at which this might become an issue, different amounts of pension already accrued and so on—that it seemed fairly evident to me from that debate that it would be difficult to try to legislate to deal with the problem in every single way in which it might show its face.
 
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We believe that making exceptions to general principles would not be helpful in this instance, and could have unintended consequences. The representative of the National Association of Pension Funds certainly made it clear that he did not believe that the trustees of pension schemes should be asked to fetter their discretion in the way that the amendments propose. Different pension schemes have different rules, are of differing sizes and have differing levels of discretion. Some already provide survivor benefits for unmarried partners as of right, or at the trustees' discretion.

We continue to believe that the best way of dealing with the situation is for individuals to ask their pension scheme trustees for advice about the provision that the scheme makes for unmarried partners and the conditions that apply, and to consider their options in the light of that information. They can then decide whether and when to ask for gender recognition, in view of all the financial circumstances that apply to them at that time.

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