Gender Recognition Bill [Lords]

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Mr. Woodward: I am happy to help the hon. Gentleman with his confusion. I am using the terms precisely because, as the hon. Gentleman might be aware, I have lived through the experience with my own brother, now sister. If a couple marry in good faith as husband and wife, but the husband realises that it is right for him to transgender, to the outside world that is a case of woman and woman living together in a same-sex marriage—I use the term same-sex in relation to how we view same-sex marriage as a concept and to the Government's objections as to why it is not possible to recognise that position for the sake of the certificate.

The fact is that such marriages have already happened, and transgendering has enabled the couple to live together as woman and woman or man and man. The certificate will be a cause of pain, and I think that we will look back in 50 years and wonder why we caused so much pain to those people over a certificate. The operation allows the person to become a woman or a man, so the couple will be living together as woman and woman or man and man, but for the sake of the certificate we will cause them a huge amount of pain. The amendments may not be the right way to change that, but the principle is that we will visit enormous pain on these people, and before the Government set their position in stone, we need to be certain that it is the right thing to do.

The Parliamentary Under-Secretary of State for Work and Pensions (Maria Eagle): May I welcome you at long last to the Chair, Mr. Taylor? I have been waiting to do so for some time and it is nice to finally get the opportunity. If the brisk efficiency with which you and Mrs. Roe have been dealing with proceedings continues, I am sure that we will meet the timetables that the usual channels have agreed.

By way of an introduction, I should say that this is the most difficult aspect of the Bill. It is the most awkward issue to deal with and the most intractable to resolve. Powerful contributions have been made, first and foremost by my hon. Friend the Member for City of York, but also by my hon. Friends the Members for Birmingham, Selly Oak (Lynne Jones), and for St. Helens, South (Mr. Woodward) who have both been deeply involved on the issue and care passionately

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about it. We have also heard thoughtful contributions from the hon. Members for Daventry (Mr. Boswell) and for Oxford, West and Abingdon (Dr. Harris). Those speeches show that, as I said, this is the toughest aspect of the Bill.

It may help the Committee if I set out the Government's understanding of the amendments. I congratulate my hon. Friend the Member for City of York on their quality—I would expect no less from two former social security Ministers, but I want to acknowledge that they are startlingly good.

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Amendment No. 29 would allow individuals who have an interim gender recognition certificate, and whose existing marriage must be ended according to the Bill's provisions, to make an application under new clause 3 that would enable them to retain their pension rights, as well as benefits from private pension schemes of which they were a member when they received their interim certificate.

Amendment No. 30 would ensure that a person who obtained the interim gender recognition certificate, and who intended to live with their spouse or partner once the marriage had been brought to an end, was covered by new schedule 1, which would enable both former spouses to retain any private pension rights they had while they were married.

Amendment No. 32 provides a definition of the concept of living together as partners, which was also raised by my hon. Friend the Member for Birmingham, Selly Oak. It sets out a definition that requires the couple to live together. I am not totally convinced that the example given by my hon. Friend would meet that requirement, although that is a moot point. It would also require the couple to retain their responsibilities to any dependants, and to maintain financial support for each other.

Amendment. No. 33 would allow the term ''living together as partners'' to refer to two people regardless of whether they had been legally married, or whether they had gone through the gender recognition process. In fact, although the amendment purports to be trying to give that legal status to anyone, it would in practice apply only to those couples who divorced as a result of the gender recognition process.

My understanding of the amendments is that they deal with a very narrow group of people who are in pre-existing marriages, as the hon. Member for Oxford, West and Abingdon suggested. I am not sure that the hon. Member for Daventry though that that was the case.

Mr. Boswell: It is my understanding that, to reduce the population to groups, there is the transgendered population, which is fairly small anyway, and there is the transgendered married population, which is a matter of hundreds, not thousands. Although the application of these provisions may potentially be to all those people, they would actually apply only to those who would be likely to lose some element of their pension rights because their marriage was brought to

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an end. We are looking at tens of people rather than hundreds or even thousands.

Maria Eagle: There is a general understanding in the Committee of what these amendments refer to. New clause 3 would allow the Secretary of State to create special provisions for couples who divorced as a result of the gender recognition process to retain private pension rights that either spouse had when the interim gender recognition certificate was issued. In this group of amendments, that would be conditional on the couple intending to live together as partners after the divorce.

Finally, new schedule 1 would provide that those people who were married members of a private pension scheme, and who had received an interim gender recognition certificate, were able to make an application to the court to allow both of them to retain the rights and benefits of the private pension scheme following the end of their marriage, so long as they intended to continue to live together. If they stopped living together, those rights would cease.

Taken together, the amendments are intended to give special private pension rights to a married couple who have to divorce in order for one spouse to obtain a full gender recognition certificate. I understand, from everybody's contributions, the reasoning behind those special rights, which is that the state is in effect saying that, to obtain the certificate, couples have to divorce, whether or not they want to.

Dr. Harris: I would be grateful if the Minister could help me to clarify my own contribution. I was unsure—rather like the hon. Member for Daventry, if he does not mind being numbered with me on this issue—whether I was right to say that the amendments potentially encompass people who have yet to marry, or whether they apply only to those who are married when the Bill is enacted. If one of the Minister's arguments is that this could be an unlimited—albeit a small, undefined—number of people, then at least if the measures were restricted to people already in this position, they could be counted and defined. The cost of the regulations could be assessed.

Maria Eagle: At the risk of clarifying the hon. Gentleman's contribution, which I would not even begin to try to do, I should say that my understanding is that the amendments refers to existing marriages. Every member of the Committee will recognise that we are talking about a very small group of people.

As hon. Members have said, the amendments were tabled because the state is stepping in to insist on a divorce between parties who do not particularly want one but who must choose between legal recognition for one party's acquired gender and the desire to stay together as a married couple. I will not get into the debate whether the couple is a same-sex couple before the divorce or after the gender reassignment, because the issue was dealt with thoroughly in the other place. The hon. Member for South-West Bedfordshire (Andrew Selous) keeps wanting to have that debate again, and I understand that views differ, but getting sidetracked by such issues will not help us to deal with the amendments.

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If the Government were to accept the amendments, some divorced couples would be treated differently from others. In effect, transsexual people would continue to be treated according to their birth gender for purposes such as pension provisions but not for other purposes. To deal with that, the Government would have to require pension schemes to treat transsexual people as if they were still married. That is the problem, and that is why I say that this is the most difficult part of the Bill. Such an approach would breach the Bill's fundamental principle, which is that once the new gender is granted legal recognition, a person must be treated as being of that gender for all purposes.

Mr. Boswell: I appreciate the Minister's explanation. Will she enlighten the Committee as to whether pension scheme trustees would have power to deal with the issue ex gratia as a matter of normal, although not necessarily universal, practice? I appreciate that that would not deal with the issue of principle, but it might at least soften the possible impact in practice.

Maria Eagle: Yes, indeed. If the hon. Gentleman will bear with me, I shall come to that point.

We are talking about a very small group of people who face the specific dilemma that my hon. Friends have powerfully described. However, we would be treating differently other people who lived together, such as unmarried couples, same-sex couples and opposite-sex couples who divorce. That raises the potential for discrimination problems, and it could lead to legal action where transsexual couples decided that they wanted to be treated differently. I am not saying that that is the most important consideration, but it is a consideration.

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