| Gender Recognition Bill [Lords]
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Mr. Boswell: This may be somewhat easier territory for the Committee. We have had a fairly full rehearsal of the possible implications on the benefits of third parties from changes in gender. I do not intend to repeat that, but I want to explain to the Under-Secretary of State for Work and Pensions, who I suspect will respond to this point, the intentions of the two amendments. Amendment No. 27 would tack on a provision, which is meant to be a general rider to part 3 rather than part 2 of schedule 5, that any party, not necessarily a party to a marriage involving a transgendered person, should be able to take any problems with occupational pensions or benefits to a court if an individual has been granted a gender recognition certificate. I have not thought the amendment through fully and that is the reason for its general nature. The amendment would apply to persons not necessarily involved in a marriage, but it would not reopen issues already discussed about persons who might lose their rights from a third party, typically the trustees of an occupational pensions scheme, because of the annulment of a marriage. We are talking about a situation in which the occupational pensions pot is fixed—typically that would be in payment, but it would provide for notional future payments—and an individual, whether a spouse or a dependant, feels that they may lose out under the provisions of the Bill. I have no difficulty with clause 18, which covers the ability to go to court in relation to a will for an order where expectations have been defeated, and to say to the court, ''This is not fair to me and it wasn't envisaged at the time the will was produced.'' I have tried to adapt that thinking to a situation in which issues arising from an occupational pensions scheme might also affect a third party. The intention is not to put an additional obligation on the trustees of the pension fund, but to provide that if such a sum is available, it might be re-ordered between the parties to take account of the circumstances.
Column Number: 171 Amendment No. 20 refers to state benefits and includes some of the underlying thinking of the modest but entirely acceptable amendment No. 53 tabled by the hon. Members for Birmingham, Selly Oak (Lynne Jones) and for Oxford, West and Abingdon, which will be discussed separately. Under the general approach of the Bill, which is that if persons change gender, their rights and obligations under the benefits system change commensurably, there may be difficulties at particular points in the process. I have singled out two such difficulties and will deal first with the simpler issue of administrative costs.If a long-awaited gender recognition certificate were granted to an individual, who was a woman in law, three weeks before her 65th birthday, she would have received a pension as a woman, would be disqualified when she became a man, and would lose her benefit. The period of time might be longer, but switching from one system of payment to another would be expensive. The Minister will probably remind the Committee that there are provisions under the Social Security Act 1998 for not bearing down on people or recovering sums that are disproportionate to the amount lost by the benefits system for paying benefits for another three weeks rather than changing the system because the individual had become a man and would be entitled to a pension in their own right. I would be grateful if the Minister could clarify that situation.
10.45 amThe second difficulty relates to the repayment of accrued benefit. It is evident from the Committee's sittings that most transgendered people are well aware of their situation and will have made inquiries before taking what is a radical step in their lives. However, there could be a situation of inadvertence in which the drafting of the Act might not be familiar to them, and they might not have realised that they stood to lose a significant amount of benefit. For example, they might not have notified the national insurance system and they might continue to receive the benefit, but when this measure becomes law, somebody might say, ''Well, we've now found out that you've become a man.'' One can imagine that one part of the benefit system might not catch up with the gender recognition side of it. It might not be clear on the form that one needs to declare it as a material change of circumstance. Somebody might be overpaid and that could give rise to considerable difficulties. I hope that the Minister will address that in the spirit in which it is offered. There is another relevant point, regarding hardship. In another place, Ministers made it clear that the provisions on state benefits in schedule 5 were substantially about the difference between ''the pension'' for persons over 60, and that they reflect the historic anomaly in the system, which will be ironed out. The pension system will eventually be proximate for men and women over 60, but as we are not yet at that position, men over 60 are not entitled to their pensions. However, as Ministers said in another place, they are they are entitled to a minimum income Column Number: 172 guarantee, so that there should be no hardship. Under the proposals, when someone changes gender, their obligations and rights in relation to the benefit system will change to those of their new gender. Within the clarity and coherence of those proposals, there could be hard cases, and our intention, with this amendment, is to enable Ministers to use an administrative solution to meet them in the least complicated way possible.It would be helpful if Ministers could tell us that there will be no such problem because it will be picked up by the minimum income guarantee, or that it will be possible, on the administrative side, not to plough on if there is only a week or two to pay, or if there are some overpayments or arrears that there should not be. Will the Minister also respond to the point on occupational pensions? The Parliamentary Under-Secretary of State for Work and Pensions (Maria Eagle): It is refreshing to hear the hon. Member for Daventry say that the range of pensions and social security benefits in schedule 5 are simpler than those involved in the previous group of amendments. That says more about the previous group of amendments than it does about the social security system. None the less, I was encouraged to hear that he is sufficiently au fait with every possible permutation in the benefit system to have the confidence to say that. Mr. Boswell: Far be it from me to accuse the Minister of implying that I was being arrogant. I was trying to say that I am confident that she—as admirably briefed by her excellent Department, as I am sure that she is—will come up with the answers. My intention in using a somewhat broad-brush, layman's approach, and with my past amendments, was to introduce this issue, and to point out that there might be some problems. I look forward to her full and sufficient explanation of any problems, and their resolution. Maria Eagle: I hope that I can oblige. I was in fact complimenting the hon. Gentleman on his erudition. Obviously, he is feeling a bit touchy today. First, I will set out my understanding of what his amendments would do. Amendment No. 27 would put in place a safeguard to prevent people from suffering any financial loss as a result of the gender recognition process. In his introduction, the hon. Gentleman made it clear that he is talking mainly about private pensions, although one would not necessarily work that out from the place in which the amendment would be placed, as it would appear to cover the whole of schedule 5. However, I think that the hon. Gentleman will accept that that is a minor point, as these are probing amendments. The amendment would also allow the High Court or Court of Session to redistribute money from a person who gains as a result of a gender recognition process to a person who loses as a result of that process. The effect would, in practice, be to treat individuals differently from those of their acquired gender. The amendment would also involve the courts in a social security arena Column Number: 173 that they normally avoid and in a manner that could cause me a worry or two, as a Minister with responsibility for some social security issues.Amendment No. 20 would prevent those who obtain a gender recognition certificate from facing hardship as a result of being in receipt of that certificate. It also seeks to prevent excessive administrative costs resulting from the issue of the certificate. Again, that would treat some with a gender recognition certificate according to their birth gender instead of their acquired gender. The amendment would also treat some individuals with a gender recognition certificate differently from other individuals with a certificate, by making special provision. The aim of the Bill is to give transsexual persons the right to live legally in their acquired gender, with proper recognition. Once individuals are recognised in a gender, the Bill treats them for all purposes according to the acquired gender, not the birth gender. That is the Bill's fundamental principle. The purpose of the schedule is to put that principle into effect and to ensure that transsexuals are given the same rights to social security, benefits and pensions to which others of their acquired gender are entitled. The schedule also provides that those who obtain a gender recognition certificate be treated according to that certificate. Given that men and women have different rights to pensions and benefits, some individuals may gain financially as a result of legally changing gender, while others may lose. That is part of the gender recognition process. It is right that people realise that their decision to gain legal recognition in their acquired gender may have such consequences. I am sure that most such individuals have thought about those issues extensively. We do not want to rewrite a person's life history. We seek to give a transsexual person who has changed their gender the same status as other members of the acquired gender from the time of legal recognition. If the Government created special provisions for those who legally acquire a new gender, those individuals would be set apart and treated differently from those who are born into that gender. Treating individuals according to their birth gender for some purposes and their acquired gender for others could also lead to inconsistency and confusion. There are problems with amendment No. 20 for that fundamental reason. I hope that the hon. Gentleman can understand that the very purpose of the Bill is to try to avoid such problems. We intend to provide comprehensive information. The hon. Gentleman may understand the pension and benefit system well, but he has had to deal with it in his duties in the House of Commons. One cannot expect people outside the House to take the same level of interest. It is important that comprehensive information about how an individual might be affected should be available. It is important also that people should be able to make a fully informed choice about whether they wish to apply for a gender recognition Column Number: 174 certificate and, if so, when it would be best to do so. For example, it might be advantageous to wait for a year or two. The situation will vary from case to case.Concerns were expressed on Second Reading about the situation of former spouses of individuals who apply for a gender recognition certificate. The amendment seeks to provide financial safeguards for them as well, as the hon. Gentleman said. As I believe we said then, however, appropriate mechanisms are already in place to deal with the benefit and pension situations in which people might find themselves, such as pension sharing on divorce. The amendment seeks to elevate the principle of eliminating all financial detriment over the Bill's inherent principle of always treating an individual according to their acquired gender after legal recognition. There is more flexibility in the system than some perhaps realise. It is possible for a spouse, for example, to substitute their national insurance contributions record for that of their former spouse where that might benefit them. Unless they remarry, that person will be able to claim a category A pension on the basis of the spouse's record and any additional contributions that they make when they reach a pensionable age. That is likely to be more generous than if had they stayed married and claimed a category B pension based upon their spouse's contribution record. That is because the substitution provisions assume that people will live in separate households following divorce. The small category of people whom we are discussing—those who divorce because they need to do so to get the gender recognition certificate—will want to stay together. That is the point of the amendments proposed by my hon. Friend the Member for City of York (Hugh Bayley) earlier in our consideration of the Bill. If the former spouse of a person who has gained a gender recognition certificate is not of pensionable age, they will be able to seek state benefits such as jobseeker's allowance providing that they are eligible to do so. They will be treated in the same way as anybody else following a divorce. They will get no special treatment. We do not believe that, under the provisions of the Bill, that is appropriate. Courts do not get become involved in determining the allocation of resources in the social security context as amendment No. 27 suggests that they should. One would be hard pressed to find any social security Minister who would do anything other than recoil in horror at the thought that they might. That is a role for the Government and Parliament and not for the courts. On that basis, I would be reluctant to accept the amendment. Although it is true that some transsexual people who have gained recognition in their acquired gender may be divested of certain benefits, it is likely that they will gain entitlement to other benefits in their place. The fiscal impact is, therefore, likely to be minimal. I do not believe that there will be individuals who face severe hardship, because other parts of the social security system will be able to provide assistance. We should Column Number: 175 therefore ensure that the principle of equal rights and recognition in the acquired gender is adhered to for all purposes.
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