Marriage (Same Sex Couples)

Memorandum submitted by Mrs Janet and Mrs Sarah Wood

Introduction

1.We married as a heterosexual couple 33 years ago, Sarah reassigning gender in 2000. Our marriage is strong and we wish it to continue, so the GRA’s annulment requirement prevented Sarah’s gender recognition.

2. Sarah developed trans equality expertise as a civil servant, first highlighting shortcomings in her department’s employment processes affecting trans people, then working to her departmental Director General in his capacity of ‘Transgender Champion’ and finally leading a:gender, the civil service trans network, engaging across the wider civil service on trans issues with the aim of minimising negative impacts that arose from inadequate trans awareness.

Summary

3.We endorse the evidence already submitted by GIRES, which Sarah co-authored, and concentrate here primarily on those issues affecting us personally:

- the regressive impact of gender recognition on occupational pensions scheme survivor benefits, creating a risk of significant/total loss of benefits

- the requirement for spousal consent and its capacity to destabilise the family;

- fast track reintroduction

-restitution of annulled marriages

Schedule 4-Part 6 - Regression of survivor’s rights in occupational pension schemes on gender recognition

4.The Bill provides an exception to avoid loss of wife’s state pension on spouse’s gender recognition in a subsisting marriage, but fails to avoid loss of wife’s survivor rights in occupational pension schemes. Although the state pension exception is primarily to avoid reducing pensions in payment, this exception will, in the right circumstances, also allow spouses not yet receiving pension payment to benefit from the exception. We welcome this provision, including its prospective aspect, which seems to indicate that no real obstacle exists to a similar exception to prevent the loss of survivor rights on gender recognition in occupational pension schemes.

5.Loss* occurs because a wife’s marital status switches from opposite sex to same sex, with its more limited survivor benefits. Whereas married women’s survivor benefits are based on years accrued from 6/4/1978 onwards, public sector pension schemes only accrue survivor benefits to same sex couples from 6/4/1988 (*potential loss 10 years’ rights). Around one third of private sector schemes only accrue from 6/12/2005 (*potential loss 27 years’ rights). While private sector schemes have discretion to preserve wives’ survivor benefits on gender recognition, public schemes have NO discretion. This Bill therefore may impose an impossible and incalculable condition of gender recognition, the potential loss of significant/all survivor benefits. (See examples in Annex A.) In our case, Janet’s potential loss exceeds Example C in this annex, should Sarah obtain gender recognition under these proposals and pre-decease Janet.

6. Therefore, the Bill’s aim to allow gender recognition in subsisting marriages without prior annulment, fails a significant proportion of individuals intended to benefit, because no reasonable trans spouse will feel able to trade their gender recognition for their wife’s financial security.

7.No reason or evidence for this treatment of trans couples was given the government’s consultation response, so we wrote to our MP Mr Barker and relevant DCMS/DWP ministers prior to the Bill’s publication. In the absence of any response to date, the first evidence of justification was Mrs Miller’s response to Ms Green’s Q353 in Committee’s oral evidence hearing on 12 February.

8.The first reason was that it would otherwise impose extra administrative/regulatory burdens - We disagree, since pension schemes already have to cope with people notifying a spouse’s gender transition in name and title, and any relationship changes on gender recognition or otherwise. Existing complexity of pensions is no fault of couples in subsisting ‘trans marriages’ and changes to accommodate the small number of people involved can hardly be ‘the straw that breaks the camel’s back’. In any case, see paragraph 91 Goodwin v UK (ECHR/2002/588) which, in deciding that transsexual people have the right to legal recognition, referred to the practicalities of recognition: "No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost." Therefore administrative/regulatory convenience is insufficient to justify any loss of trans spouse’s wives benefits.

9.The second reason was that intrusive questions would be asked of surviving wives to evaluate survivor benefits – We disagree again; pension schemes can identify benefits clearly when notified of gender recognition in marriage. And, sadly, intrusive questions remain an everyday risk for transsexual persons or their spouses. It is not for government to determine that such questions are so intrusive as to justify this loss of survivor benefits.

10.Additionally, the Minister’s evidence gave the misleading impression that all occupational pension schemes possess flexibility to deal with survivor rights in a way that does not penalise spouses on gender recognition. While it is true that private sector schemes can, and some do, there is NO discretion for public sector schemes to vary from statute.

11.Since these justifications appear to be inadequate, we must consider whether other reasons can be inferred for changing the survivor benefits for trans people’s spouses in a continuing marriage, from the higher widows’ level of entitlement to survivor benefits prior to gender recognition, to the restricted level of same sex couples. The argument appears to be that, on gender recognition, the couple have legally become a same sex couple and, in the interests of "equal treatment", must have the same outcome as other same sex couples. We must therefore first understand how civil partners came to be treated differently to opposite sex couples before we can understand trans couples’ proposed treatment.

12.One reason for different treatment of civil partner’s survivor rights was residual sex discrimination currently working out of the system, whereby occupational schemes were obliged to provide widows’ survivor benefits from 6/4/1978, but widowers’ benefits only from 6/4/88. When civil partnerships were legislated, partners’ survivor benefits had to be considered in this context. However, government initially decided that civil partners’ would only be entitled to survivor benefits based on contributions made from 6/12/2005, when the Civil Partnerships Act came into force.

13.Government’s justification of this treatment was scrutinised in detail by the Joint Committee on Human Rights. The respective arguments advanced by the government and the JCHR are included in JCHR’s report on the CP Bill (HL136/HC885) which posed questions to government (Appendix to report) seeking justification for the treatment of survivor pensions. Government responded in a further letter of 29/7/2004 included as an Appendix in the JCHR’s later progress report (HL 182/HC 1187). The July letter repeated government’s claim that no discrimination arose but nevertheless responded to JCHR’s questions. However, before publication of JCHR’s progress report on 20/10/2004, government announced a policy change during the Commons 2nd reading of the CP Bill on 12/10/2004, to allow registered same-sex partners to accrue survivor pensions in public service schemes from 1988. The sole reason given for the change of heart was to ensure that the rights as well as responsibilities of married couples are replicated in civil partnerships.

14.JCHR’s progress report welcomed this change but nevertheless commented on government’s arguments of 29/7/2004 because of the importance it attached to the interpretation of discrimination and human rights law. JCHR concluded at 2.29 of the report that, in their view, "the onus of justification in relation to the difference of treatment had not been made out by the Government in its letter responding to our concerns. In the absence of such justification, we conclude that the difference of treatment would be incompatible with Article 14 in conjunction with Article 1 of Protocol 1. We welcome the fact that this now appears to be accepted by the Government." We conclude from this that government conceded the existence of Article 14 discrimination and that it could not be justified, at least in public sector schemes. However, this decision was about extending civil partners’ rights back to 1988, but is it right to use the same reasoning to justify the rather different treatment of trans marriages in which the wife will be denied rights accrued prior to 1988 in public sector and many private sector schemes, or prior to 2005 in some of the latter? We think not, since it is an entirely different question.

15.As JCHR indicated in its progress report, paragraph 2.12, the comparison required to determine Article 14 discrimination is NOT when survivor rights accrue but when benefit is paid. As stated in 2.31, if discrimination is demonstrated, then the onus is on government to justify any difference of treatment. Such evidence must be ‘weighty’, for example, that the impact on existing schemes might give rise to serious economic repercussions or that the impact will be so grave as to justify the difference of treatment.

16.To assess whether discrimination arises in the restriction of survivor rights on gender recognition a comparator must be identified. During the CP Bill discussions, there was only one obvious comparison, between civil partners and married couples, but who should trans couples be compared with? The choice rests between a wife in a lesbian same sex marriage (‘lesbian wife’) and the wife married to a husband who has not undergone gender reassignment/recognition (‘non-trans wife’). The table below considers the circumstances of both options alongside the wife of a trans woman in a same sex couple as a result of gender recognition within marriage (‘trans wife’):

Circumstance

Lesbian wife

Trans wife

Non-trans wife

Spouse’s contributions record 1978 to 1988

None paid

Paid throughout

Paid throughout

Marriage status 1978 to 1988

Marriage unavailable

Married throughout

Married throughout

Entitlement to survivor rights granted

Granted in 2005

Granted by 1978

Granted by 1978

Liability provided for by pension scheme

Unprovided before 2005

Provided throughout

Provided throughout

Sexual orientation

Lesbian

Heterosexual

Heterosexual

Gender reassigned spouse?

No

Yes

No

17.This table shows no coincidence between lesbian and trans wives, whereas trans and non-trans wives differ only on spouse’s reassignment; non-trans wives are therefore the correct comparator. Equal treatment is clearly accorded prior to the grant of gender recognition, the ultimate stage of the gender reassignment process, as both wives receive rights back to 1978. Only on gender recognition does the loss of earlier years put trans wives at the disadvantage identified in Annex A. This is not however a difference of sexual orientation - although gender recognition may recast the couple as legally same sex, it can have no effect on the wife’s actual sexual orientation - but a difference due to sex, of which gender reassignment/recognition is an aspect. Government must justify this discrimination.

18. JCHR indicated the high level of justification required in its report on the CP Act, for which government claimed that backdating survivor’s pensions for civil partners to 1988 would add £125 million to the liabilities of public service pension schemes. JCHR was rather dismissive of the evidence, so we cannot identify the level of financial impact that would constitute justification, not least because government changed its policy and absorbed any extra liability, whatever it may have been. We can however consider the impact of allowing survivor benefits to remain unrestricted by a spouse’s gender recognition. Trans people who obtain recognition within marriage are a tiny minority, even among those who undergo reassignment, a group that is in itself a very small minority. Additionally, since all liabilities are known and provided for up to the time of gender recognition, there will be no extra cost of preserving the survivor benefits unchanged after recognition. It may therefore be that the government’s justification really is no more substantial than the Minister’s offering per paragraphs 8 and 9 above. Accordingly, we hope this demonstrates that government’s policy of restricting existing survivor benefits on the grant of gender recognition is incompatible with human rights. We have insufficient space to elaborate the similar case that the proposal is unlawful under EU Council Directive 86/378/EEC as recast by Directive 2006/54/EC.

19. The analysis above relates to public sector schemes, but the disadvantage to spouses on gender recognition may be even greater in those private sector schemes limiting rights to post-2005 years. While, as the minister stated, private sector schemes do have discretion, around one third of schemes apply this later date, as considered in the recent employment tribunal case 2411316/2011 Walker v Innospec Ltd. We therefore see good reason to also mandate the preservation of rights in private sector schemes if the Bill is amended to do so for public sector schemes.

20.If the Bill remains unchanged, then we need to consider the effect of the loss of spouse’s survivor benefits on Sarah’s Article 8 rights to gender recognition. The risk of significant loss makes it likely that trans spouses in such cases would feel obliged to forgo recognition; in fact Sarah has always guaranteed Janet that she would never let gender recognition trump Janet’s rights. This constructive denial of gender recognition must infringe Article 8 rights of the trans spouse. Prior to this Bill, Goodwin (ECHR/2002/588) determined that legal recognition must be provided to trans people, but made clear the state’s right to set the conditions for recognition. This was tested in the Parry case ([2006] ECHR 1157), where it was found to be within the state’s margin of appreciation to require annulment of a existing marriage. This Bill, however, removes the annulment requirement, but instead implies a new condition for some individuals, that their spouse’s survivor benefit must be restricted in parallel with the current treatment of civil partners, despite the Bill’s intention to recognise the marriage as continuous.

21.This point was raised by JCHR in its Gender Recognition Bill report HL34/HC303 para 4.29: "We are particularly concerned about the impact on pensions of an enforced annulment of marriage. At present, (the Bill) does not cater for this, and there is no guarantee that civil partnership legislation (when it is eventually put before Parliament) will do so satisfactorily." The Civil Partnership Act did not so cater, nor does this Bill, despite its removal of the annulment requirement, the only area where the State previously had any margin of appreciation.

22.Given the complexity of pensions, the Bill creates an enormous risk that trans spouses, at last able to obtain gender recognition within marriage, may seek recognition without knowing/understanding restrictions imposed on wives’ survivor benefits. This is not always obvious from pension statements, particularly when retired, and might go unrealised until the wife claims these benefits. It is unjust for the state to set such traps for ordinary members of the public, particularly when, even fully informed, the risk cannot be evaluated.

23.Current proposals, with their retrospective denial of benefits, create a high risk of judicial review and Annex B encloses our analysis of draft amendments to Schedule 4 Part 6 of the Bill to remove this high risk.

Schedule 5 section 4 - The requirement for spousal consent and its capacity to destabilise the family

24.We share concerns expressed by GIRES about the impact of current proposals for spousal consent and continued use of IGRCs, as they may allow non-trans spouses to effectively veto gender recognition or unreasonably delay proceedings. We therefore wish to see more balance.

25.Spouse’s consent is provided as a mechanism to facilitate couples wishing to remain married to do so without hindrance. However, perfectly happy marriages may stumble over the loss of survivor rights if the Bill remains unchanged. If Sarah were to ask for Janet’s consent and inform her of the potential loss, might Janet refuse to give consent because of this risk? Could this create a wedge that undermines the marriage, contrary to the Bill’s aims. And what if Sarah seeks Janet’s consent without informing her of this risk? We intend to avoid this outcome, but see the risk for others.

26.Incapacity is a further issue, where the spouse suffers, for example, a severe stroke or dementia. The trans spouse may want gender recognition but cannot obtain it, even though recognition has no practical impact on the couple or the trans spouse’s willingness to care for their spouse.

Fast Track Reintroduction

27.The GRA contains a temporary Fast Track process enabling those who had been living in role for 6 years and had a formal diagnosis of gender dysphoria or had undergone genital reassignment surgery , to meet the evidence requirement for GRC award, provided they were unmarried. We wish to see this process reintroduced and remain in place on a rolling basis, particularly if the treatment of survivor rights remains unchanged. The original process was denied to married persons who would have otherwise qualified, and some people, including Sarah, have been waiting over a decade for gender recognition. Her wait may be even longer if the restriction on survivor rights persists, as Sarah can only seek recognition if she outlives Janet. This could be many years hence, so it is vital that the process does not expire. Such a process will cut implementation costs by reducing the GRP’s workload, and applicants’ costs, because of the reduced evidence requirement.

Schedule 5 – Restitution of marriages

28.Although Schedule 5 allows couples who ended their marriages under duress and formed a civil partnership to convert to marriage, it will not restore their original marriage. Our hearts go out to couples who felt obliged to surrender marriage for the trans spouse’s recognition. Most reasonable people (including the JCHR in their 2003 GRA report) see the annulment requirement as a great wrong. The Bill rectifies this wrong for new couples but does not redress the distress suffered by those impelled to sacrifices their marriages.

30.Married couples who took this route to civil partnership to obtain a GRC should be allowed, on request, to have their original marriage reinstated, original rights intact, with a marriage certificate issued in their current names, showing the original date of marriage, and the marriage considered as continuous.

February 2013

ANNEX A

Examples of lost survivor ben e fits

A

B

C

D

E

F

Sector

Public

Public

Public

Pr i vate**

Pr i vate**

Pr i vate**

Retirement at age 55 eg police

Pension deferred in 1991 during period of self e m ployment till retirement

Early r e tirement in response to deficit r e duction

Retired age 60

Retired age 65

Due to retire age 66***

Joining date

05/04/1958

05/04/1976

05/04/1977

06/12/1972

06/12/1965

06/12/1971

Leaving date

05/04/1988

05/04/1991

05/04/2011

05/12/2012

05/12/2005

05/12/2021

Years in service

30

15

34

40

50

50

Pre 6/4/78 service

20

2

1

5.33

12.33

6.33

Service 6/4/78 to 5/4/88* (PU B LIC)

10

10

10

Sevice from 6/4/88 (PUBLIC)

0

3

23

Service from 6/4/78 to 5/12/2005 (PR I VATE)

27.67

37.67

27.67

Service from 6/12/2005 (PR I VATE)

7

0

16

PRE-RECOGNITION:

Pension at current value (£)

20000

5000

30000

25000

10000

25000

Wife's pension (£)

3333

2167

14559

10834

3767

10918

Basis of calculation

(10/30 x 20000 x 1/2)

(13/15 x 5000 x 1/2)

(33/34 x 30000 x 1/2)

(34.67/40 x 25000 x 1/2)

(37.67/50 x 10000 x 1/2)

(43.67/50 x 25000 x 1/2)

POST RECOGNITION:

Wife's pension following gender reco g nition (£)

0

500

10147

2188

0

4000

Basis of calculation

(0/30 x 20000 x 1/2)

(3/15 x 5000 x 1/2)

(23/34 x 30000 x 1/2)

(7/40 X 25000 X 1/2)

(0/50 X 10000 X 1/2)

(16/50 X 25000 X 1/2)

% loss of pension

100

77

30

80

100

63

Annual loss (£)

3333

1667

4412

8647

3767

6918

Loss over 5 years (£)

16667

8333

22059

43234

18835

34588

Loss per week (£)

64.10

32.05

84.84

166.29

72.44

133.03

*Wives' survivors rights were granted from 6 April 1978. 6 April 1988 was the date when survivors’ rights were equalised for widows and widowers to eliminate this aspect of sex discrimination in the UK's provision of pensions.

**Based on schemes applying the minimum rights from 6 December 2005. The two third of schemes said to grant rights back to 1988 will be similar in impact to the public se c tor examples.

*** Forecast based on current salary

NB: only private schemes have discretion to be flexible. Public sector schemes have NO di s cretion.

ANNEX B

Draft amendments to prevent regression of the survivor rights of a wife in an existing marriage, following a spouse’s gender recognition.

A. Analysis of amendments required

These have been arrived at by using an up to date version of the Pension Schemes Act 1993 available at http://www.dwp.gov.uk/docs/a5-1251.pdf , updating this to see the effect of the amendments proposed in Schedule 4 Part 6 of the Marriages (Same Sex Couples) Bill, and then drafting amendments to the Act so updated that will prevent the regression of the wife’s survivor rights following gender recognition. These amendments were arrived at by analysing each paragraph of Part 6 in turn as below, to arrive at the suggested text of amendments included at B below:

Sub paragraph 16 – Draft amendment 1 below ensures that wives in same sex couples as a result of their spouse’s gender recognition also benefit from the exception in Schedule 9 Para 18 Equality Act 2010 afforded to husbands and wives in opposite sex marriages.

Sub paragraph 17 – I believe that no amendment is required as this paragraph functions only to extend guaranteed mini-mum payment provisions of Section 8 Pension Schemes Act 1993 to same sex couples in addition to husbands, wives and civil partners.

Sub paragraph 18 – Draft amendment s 2 and 3 amend Section 17 (3) and (4) respectively, to avoid placing the limitation to accrued years from the tax year 1988-1989 onwards on wives in same sex couples as a result of their spouse’s gender recognition. Draft amendment 4 provides a definition of such wives. This seeks to follow the models provided in the Part 5 exceptions for such couples.

Sub paragraph 19 – The current clause in the Bill ensures that same sex couples are afforded survivors’ rights. Draft amendments 5 to 7 collectively ensure that wives in same sex couples as a result of their spouse’s gender recognition are included in the categories entitled under Section 24D (2) entitled to access pension rights accrued between 6 April 1977 and 5 April 1997, and that such wives are removed from the categories in Section 24D (3) whose entitlement in restricted to the period 5 April 1988 to 5 April 1997.

Sub paragraph 20 – As explained in the Explanatory Notes to the Bill, Section 37 of the Pensions Schemes Act 1993 pro-hibits alterations to the rules of a contracted-out scheme unless the alteration is of a prescribed description and except in prescribed circumstances. Section 37(3) prohibits such alterations by schemes that were formerly contracted-out so long as any person is entitled to receive benefits for the period when the scheme was contracted-out. Section 37(4) limits the appli-cation of section 37(3) when the beneficiary is a widower or surviving civil partner. The effect of the amendment in para-graph 20 is that this limitation may also be applied when the person entitled to receive benefits under the scheme is so enti-tled because of being a survivor of a marriage with a person of the same sex. Draft amendment 8 removes this limitation where the beneficiary is a survivor who is a wife who was in a same sex couple as a result of their spouse’s gender recogni-tion.

Sub paragraph 21 – I believe that no amendment is required as this paragraph functions only to extend to same sex couples the further provisions of Section 47 (1) Pension Schemes Act 1993 regarding the effect of entitlement to guaranteed minimum pension on payment of social security benefits.

Sub paragraph 22 – I believe that no amendment is required as this paragraph functions only to extend the basis of re-valuation provisions of Section 84 Pension Schemes Act 1993 to same sex couples in addition to husbands, wives and civil partners.

Sub paragraph 23 – I believe that no amendment is required as this paragraph functions a definition in Schedule 3 (1) Pension Schemes Act 1993 to add surviving same sex spouses to widows, widowers and surviving civil partners.

B. Suggested text of amendment

1. At Schedule 4 Page 34 Line 4, at end insert

"(c) a woman who is married to a woman who is her spouse where -

(i) the spouse is a woman by virtue of a full gender recognition certificate having been issued under the Gen-der Recognition Act 2004, and

(ii) the marriage subsisted before the time when that certificate was issued.".

2. At Schedule 4, Page 34, Line 22, after (4) delete ":after "partner’s" insert "or surviving same sex spouse’s"." and insert

"-

(a) after "partner’s" insert "or surviving same sex spouse’s";

(b) at the end insert "but this limitation does not apply to a surviving same sex spouse by virtue of gender recogni-tion as defined in (4C) below."

3. At Schedule 4, Page 34, Line 21, insert

"(2A) In subsection (3) after "widow’s", insert "or a survivor same sex spouse’s, where within (4C) below,".

4. At Schedule 4, Page 34, Line 22, at end insert

" (3A) After subsection (4B) insert

"(4C) A surviving same sex spouse is "a same sex spouse by virtue of gender recognition" where she was married to-

(a) a spouse who was a woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, and

(b) the marriage subsisted before the time when that certificate was issued."

5. At Schedule 4, Page 34, Line 29, leave out "is a man married to a woman, and the earner " and insert "is a man married to a woman, or a woman within (4) below who is married to a woman, and the earner"

6. At Schedule 4, Page 34, Line 32, leave out "is a married woman, a man married to a man, or a civil partner, and the earner dies" and insert "is a married woman except within (4) below, a man married to a man, or a civil partner, and the earner dies".

7. At Schedule 4, Page 34, Line 34, at end insert

"(4) A woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, whose marriage subsisted before the time when that certificate was issued."

8. At Schedule 4, Page 34, Line 35, delete ", in subsection (4), for "widower or surviving civil partner of an earner" substitute "widower of a female earner, the survivor of a marriage with an earner of the same sex, or the survivor of a civil part-nership with an earner,". "

and insert

"-

(a) in subsection (4), for "widower or surviving civil partner of an earner" substitute "widower of a female earner, the survivor of a marriage with an earner of the same sex, or the survivor of a civil partnership with an earner,";

(b) at the end insert

"(5) The limitation in subsection 4 shall not apply to the survivor of a marriage with an earner of the same sex in which the survivor was married to-

(a) a spouse who was a woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, and

(b) the marriage subsisted before the time when that certificate was issued."

Initally prepared by Sarah Wood on behalf of Janet & Sarah Wood on 14 February 2013

Prepared 4th March 2013