Mr Hugh Bayley (York, City of, Labour)

I beg to move amendment No. 29, in

clause 4, page 3, line 16, at end insert—

'( ) Once an interim gender recognition certificate has been issued an application under section [Retained pension rights] may be made.'.

Mr David Taylor (North West Leicestershire, Labour/Co-operative)

With this it will be convenient to discuss the following:

Amendment No. 30, in

clause 4, page 3, line 16, at end insert—

'( ) If subsection 3 and Schedule 2 apply, and the couple intend to live together as partners following an annulment or dissolution of marriage Schedule [Retained benefits following issue of interim gender recognition certificate: living together as partners] shall apply.'.

Amendment No. 32, in

clause 25, page 11, line 29, at end insert—

'''live together as partners'' means—

(a) none of the provision of sections 1, 11 or 12(a) to 12(f) of the Matrimonial Causes Act 1973 apply;

(b) the couple live together;

(c) the couple retain their responsibilities in relation to any existing dependants; and

(d) the couple maintain existing financial support for one another.'.

Amendment No. 33, in

clause 25, page 11, line 29, at end insert—

'( ) Two people may live together as partners irrespective of whether—

(a) they have been or remain for the time being legally married, or

(b) either of them has been issued with an interim gender recognition certificate or a gender recognition certificate.'.

New clause 3—Retained pension rights—

'(1) The Secretary of State may by order make regulations to allow a couple following annulment or dissolution of marriage under the provisions of Schedule 2 of this Act to retain the pension rights and benefits from any private pension scheme of which either party was a pre-existing member at the time of the issue of an interim gender recognition certificate, provided that both parties show that they intend to live together as partners following the divorce and that none of the circumstances provided for sections 1,11 or 12(a) to 12(f) of the Matrimonial Causes Act 1973 apply.

(2) For the purposes of subsection (1) above a private pension means—

(a) an occupational pension scheme,

(b) a personal pension scheme, or

(c) a stakeholder pension scheme.'.

New schedule 1—'Retained benefits following issue of interim gender recognition certificate: living together as partners—

1 A person who is—

(a) married, and

(b) a member of a private pension scheme, and

(c) has been issued with an interim gender recognition certificate,

may apply to the court to order that all rights and benefits of the pension scheme should continue to apply following the annulment or dissolution of marriage if the person can satisfy the court that both parties to the existing marriage intend to live together as partners.

2 A person who is married to a person who—

(a) is a member of a private pension scheme, and

(b) has been issued with an interim gender recognition certificate,

may apply to the court to order that all rights and benefits of the pension scheme should continue to apply following the annulment or dissolution of marriage if the person can satisfy the court that both parties to the existing marriage intend to live together as partners.

3 In this Schedule—

''private pension scheme'' has the same meaning as in section [Retained pension rights](2);

''court'' means the court bearing the petition for divorce.

4 In this Act a couple ''live together as partners'' if—

(a) none of the provisions of sections 1, 11 or 12(a) to 12(f) of the Matrimonial Causes Act 1973 apply;

(b) they intend to live together; and

(c) they intend to retain their responsibilities in relation to any existing dependants.

5 Any award made under paragraphs 1 or 2 of this schedule shall be void if the circumstances set out in paragraph 4 cease to apply.

6 An appeal against any award made under paragraphs 1 or 2 of this schedule shall be heard by the court.

7 An appeal under paragraph 6 must show that the circumstances set out in paragraph 4 cease to apply.

8 Any person may show cause why an award under this schedule should not be made by reason of material facts not having been brought before the court; and in such a case the court may—

(a) notwithstanding anything in paragraphs 5 or 6 above, make the award;

(b) rescind the award;

(c) require further inquiry; or

(d) otherwise deal with the case as it thinks fit.

9 An application for an award under this schedule may only be made—

(a) after the issue of an interim gender recognition certificate; and

(b) before the issue of a gender recognition certificate.'.

Mr Hugh Bayley (York, City of, Labour)

Members of the Committee who were present on Second Reading will know that I have strongly held opinions about the wisdom or otherwise of requiring transsexuals who wish to obtain a full gender recognition certificate to divorce if they happen to be married. I exercised some self-restraint during the last debate because the comments that I wish to make about that are best made in the context of the amendments that I have tabled on the pension entitlement of people in those circumstances.

The Bill is a good one, but it is marred because insufficient attention has been given to the interests and the rights of those married to transsexual people. One of those rights is the right to married life. The Bill assumes that it will always be in the interests of a husband or wife of a transsexual person to divorce at the point that the transsexual person applies for a full gender recognition certificate. I am afraid to say that that is not the case at all.

Instances have been brought to the attention of the House on Second Reading and in this Committee today where it is neither in the interests of the spouse, nor is it the wish of the spouse, to go through divorce proceedings. The hon. Member for Daventry referred to one such case, and circulated it to Committee members, where the couple concerned issued a long and detailed legal statement that pinpoints the conflict between the human rights of a married transsexual person who seeks registration in their acquired gender and the human rights of that person's husband or wife to marriage, privacy and financial security in circumstances in which neither party wishes to dissolve the marriage.

A couple in my constituency are in just such circumstances. They have been married for 35 years and they wish to remain together. On Second Reading, I raised their requirements for a waiver, which we discussed in the previous clause, to allow such a couple to remain married. Like the hon. Member for Oxford, West and Abingdon, I regret the Government's response. I agree with the hon. Gentleman that there is no reason why the Government could not, in this one

instance, make an exception to the wise general rule against same-sex marriages, as the Governments of France and Italy did.

Mr Tim Boswell (Daventry, Conservative)

Will the hon. Gentleman note, by way of encouragement, that whereas there may be difficulties about hard principles, which we discussed in our debate on the preceding group of amendments, it does not rule out the support in principle of some hon. Members on the Opposition Benches for consideration of points of practice, difficulty and legitimate expectations that I suspect the hon. Gentleman is bringing forward?

Mr Hugh Bayley (York, City of, Labour)

I am indeed encouraged by what the hon. Gentleman says and I hope I receive the support not just of Opposition Members but of Labour members of the Committee.

For the Committee's benefit, I want to explore the problem from the point of view of my constituents who, as I said, have been married for 35 years. For the past 33 years, since their first child was born, the wife has not worked full time and has not earned a pension in her own right. Like many women, she stayed at home to bring up the children and relied on her husband to make pension provision for their mutual old age. Their pension provides benefits to

''a legal spouse at the time of death or retirement''.

So if the proposal goes through and her partner wishes to exercise his human rights as defined by the European court to recognition in his acquired gender, they will have to divorce, and if they do so she will lose her right to a pension in retirement. Both partners are at the end of their working life; she does not have any opportunity to make alternative provision for her retirement, and yet if her husband applies for recognition in his new gender, she will lose her security in retirement.

What is so wrong with the Bill is that the invidious choice whether to put gender recognition or the marriage first rests solely with the transsexual person. It cannot be right to pass a measure that affects both partners of a marriage equally but gives one less legal protection for their human rights: it gives the non-transsexual less protection for his or her human rights than the other party in the marriage.

I want the Minister and the Committee to know what the spouse of the transsexual in my constituency said. I shall read from her letter, deleting only the name of her partner, because they both wish for anonymity and privacy. The wife said that she has no intention of leaving her partner and does not want to get divorced. She said that she had been married for 35 years and is happy to remain so, even when her partner has surgery. She said that it would be unfair to make them divorce as it would cost them money and they want to remain married. She is dependent upon her partner for her pension and she wants to know what provision the Government intend to make for her.

It is perfectly reasonable for my constituent to want privacy but, if the Bill is passed and her husband seeks a full gender recognition certificate, she will lose her

privacy because her family circumstances will be dragged through the courts. We know what the media are likely to make of that. The Bill does not protect her human rights. I tabled my amendments because I believe that her rights must be protected, and I ask the Government to support my proposal.

The amendments and new schedule would protect the financial interests of both partners in a marriage if they want to stay together to retain and honour their financial responsibilities to one another after their marriage is dissolved for the purpose of obtaining a full gender recognition certificate. New clause 3 would permit the Secretary of State to make regulations to allow a couple in such circumstances to retain the pension rights and benefits that either party had in a private pension scheme at the time the interim gender recognition certificate is issued. I do not envisage that that will impose any burden on the pension provider, as issue of a full gender recognition certificate will not change the life expectancy of either party or their responsibility for dependents.

An alternative way of achieving the aim would be to put a similar provision in the Bill. New clause 3 would allow the Minister to make regulations, but the alternative in new schedule 1 would make similar provision in the Bill itself. The new schedule would give rights to either partner to the marriage. I stress the word ''either''. The Bill gives one partner, the transsexual, the right to trigger a decision, but the

other party does not have such a right. New schedule 1 would give an equal right to either partner to apply to a court to retain their joint pension entitlement following dissolution of their marriage, provided that they satisfy the court that both parties intend to live together as partners. The new schedule defines what is meant by living together.

The new schedule also provides that the pension arrangements made under it would become void if a couple subsequently stopped living together. It provides for either party or the pension provider to apply to a court if the circumstances change.

These are serious amendments. They are not intended simply to probe the Government's view, which I know. I seek to remedy a serious injustice.

Mr Tim Boswell (Daventry, Conservative)

I understand that the hon. Gentleman's amendments bear solely on private pension provision and have nothing to do with state benefits or taxpayer involvement. Is that the case?

Mr Hugh Bayley (York, City of, Labour)

Yes, I can confirm that the amendments relate solely to private pension arrangements. I do not have a quarrel with the separate part of the Bill that relates to state pension arrangements.

Debate adjourned.—[Ms Bridget Prentice.]

Adjourned accordingly at twenty-four minutes past Five o'clock till Thursday 11 March at half-past Nine o'clock.