Benefits and pensions
Gender Recognition Bill [Lords]
10:30 am

Mr Tim Boswell (Daventry, Conservative)

I beg to move amendment No. 27, in

schedule 5, page 28, line 15, at end insert 'provided that it shall be possible for any individual whether or not personally in receipt of a gender recognition certificate, but as a consequence of the issue of such a certificate to any person, to apply to the High Court or Court of Session for an order on the ground of detriment to his present or future income, and the court may, if it is satisfied that it is just to do so, make in relation to any person benefiting such arrangements for the reallocation of income between the interested parties as it may deem appropriate.'.

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

With this it will be convenient to discuss the following:

Amendment No. 20, in

schedule 5, page 32, line 11, at end insert—

'Continued payment of benefit

13A In any case where the Secretary of State judges that the ending of an entitlement to state benefit under this Schedule may give rise to hardship or to excessive administrative cost he may provide for the continuing payment of benefit as if the certificate had never been issued.'.

Mr Tim Boswell (Daventry, Conservative)

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.

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.

The 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

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?

Ms Maria Eagle (Parliamentary Under-Secretary (Minister for Disabled People), Department for Work and Pensions; Liverpool, Garston, Labour)

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 Tim Boswell (Daventry, Conservative)

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.

Ms Maria Eagle (Parliamentary Under-Secretary (Minister for Disabled People), Department for Work and Pensions; Liverpool, Garston, Labour)

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

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

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

therefore ensure that the principle of equal rights and recognition in the acquired gender is adhered to for all purposes.

Mr Tim Boswell (Daventry, Conservative)

Over and above the example I cited to her—the minimum income guarantee—can the Minister give any specific examples in which one benefit can substitute for another in a helpful way?

Ms Maria Eagle (Parliamentary Under-Secretary (Minister for Disabled People), Department for Work and Pensions; Liverpool, Garston, Labour)

I can. There are a number of different sets of circumstances. If somebody wants to put some to me, I am happy to try to explain what benefits would be available. The social security system has a safety net and it is there to make sure that people do not suffer severe financial hardship. We do not believe that they would.

The hon. Gentleman made some points about overpayments and what would happen if, by inadvertence, somebody did not report a change in circumstances. There is a general duty in the social security system to report changes in circumstances that may lead to a change in benefit entitlement. That is something that every recipient knows. It is stated on every order book, leaflet and piece of information.

As I have already said to the hon. Gentleman, we will be providing extensive guidance and information about financial and benefit implications to those contemplating gender recognition certificates. We hope to be able to make it clear at that time that the circumstances need to be reported in respect of any benefit entitlement. Where there is inadvertence, and no clear attempt to deceive, the Department takes a sensible view of whether to pursue overpayments. However, we have a general duty to the public purse to pursue overpayments where appropriate. The Department has a system to evaluate each case on its merits and to decide whether overpayment should be pursued.

The hon. Gentleman referred to one part of the Department not knowing what another part does. That has been known to happen every now and then. The Department takes the view that, where that has happened, and where there has been some fault on our part that has resulted in an overpayment, it would not be appropriate to pursue it. Each case is considered on its merits. That does not take away the fact that each recipient of social security benefits has a duty to ensure that they report changes of circumstance that might affect their benefit entitlement. I hope that the hon. Member for Daventry will be satisfied with that explanation.

Mr Tim Boswell (Daventry, Conservative)

Broadly, that is the case. I am grateful to the Minister for explaining the situation. Sometimes in moving amendments, I gain not by writing measures out of the Bill, but by the type of reply that the Minister gives. On cue, she has done exactly what I hoped that the amendments would trigger, which is to explain the arguments, particularly those about discrimination between categories of persons in their acquired gender compared with persons who were born in that gender.

I understand her concerns about that and about the integrity and operation of the social security system. I am not dogmatic; they have been useful probing amendments to which we have received a more than adequate response.

I am particularly grateful that the Minister has said that there will be full information for persons who are contemplating gender reassignation and application for a certificate. It is important that the general information sent to all benefit holders or people who are, for example, about to receive their pension entitlement, makes clear that the issuing of a gender recognition certificate is a material change in circumstances.

I am sure that the Minister will want to produce a package for this specific area, and for the integrity of the system it is important that information is provided, as it is for entry to hospital and in other circumstances of general notification, so that people—or, perhaps more typically, the partner—may pick it up and make the necessary inquiries. I am satisfied with the Minister's response and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dr Lynne Jones (Birmingham, Selly Oak, Labour)

I beg to move amendment No. 53, in

schedule 5, page 29, line 37, at end insert—

'(2A) But sub-paragraphs (1) and (2) do not apply to a person who was aged not less than 59 years on the date of Royal Assent of this Act and who was a woman immediately before the certificate is issued, and the rights of that person to a Category A retirement pension are to be decided as if the certificate had not been issued.'.

The amendment is designed to deal with the plight of a very small number of female to male transsexual people who are either currently retired and in receipt of category A pensions or will retire before the Bill is enacted. As the hon. Member for Daventry has pointed out, many of the situations in the schedule arise because of the differential age of retirement between men and women. In moving towards a common retirement age of 65, transitional arrangements allow people affected to plan for their future. I will be one of the first cohorts of women affected by it; my retirement age will be 61 rather than the age of 60 for women who are older.

The amendment asks for similar transitional arrangements for a very small group of people who would otherwise suffer undue hardship. We are talking about a handful of people. Stephen Whittle, vice-president of Press for Change, founded the FTM network in 1989. It has 800 members who are female to male transsexual people. Of those 800, only 13 are aged 60 to 65; three will be 60 in 2004; and a further three will reach 60 in 2005. It is therefore estimated that no more than 30 men will be affected by the amendment.

Stephen Whittle managed to contact seven of the 13 individuals who are retired. Of those, six are working full or part-time, but five are earning less than £9,000 a year gross, and one is earning less than £4,000 a year. One man has recently been able to carry out work for the first time in many years as a result of society's attitudinal changes, the protection of the law following

P v. S and Cornwall county council and the fact that he continues to receive his category A pension, which has permitted him to take on low-paid work in the voluntary sector.

If those people must choose between continued receipt of their pension and benefiting from their human rights as provided for under the Bill, they will be placed in difficult financial circumstances. One of them said that it would be the difference between a frugal life and a life of penury. Of course, pension credit would not help them, because to benefit from that means-tested benefit they would have to give up their jobs.

The Under-Secretary of State for Constitutional Affairs said in the first sitting:

''transsexual people do not choose their gender identity. It is a long, difficult and painful experience for them to acquire a new gender, and one which may result in the loss of friends, family and even employment.''—[Official Report, Standing Committee A, 9 March 2004; c. 17.]

The Minister clearly understands the plight of transsexual people. He understands that many people will have lost employment opportunities as a result of the discrimination that they suffered. For example, people will have failed to apply for jobs or will have withdrawn their applications when demands to see their birth certificate were made.

That small group consists of people who have suffered all their lives. Some underwent their transition more than 30 years ago, but have not had full civil rights in that time, and have suffered discrimination that has affected them into their retirement. Now they could be asked to lose their small state pension.

I am asking for something that will affect only a very small number of people. What I propose is, in effect, similar to the transition in respect of the equalisation of the age of retirement; it would allow for phased implementation and set no new precedent, because it would be time-expired and would not apply to future cohorts. The amendment would affect those who have been disadvantaged by the accident of belonging to an age group that did not allow them to plan for their retirement. Many have been forced against their will to retire at 60—six of the seven people in the example that I gave were in that position.

The amendment has very small financial implications and would allow the small number of people in question to avoid a predicament in which benefits that they now receive would be likely to be withdrawn. It is a long-standing principle of the social security system that people currently in receipt of benefits should not have them withdrawn.

Dr Evan Harris (Oxford West and Abingdon, Liberal Democrat)

I strongly support the hon. Lady's comments and have signed her amendment. Does she agree that the key point is that it cannot be right for a small number of people in the situation that has been outlined to have to choose whether to gain access to the rights granted to them by the European Court of Human Rights, given that it appears that they may be forced into a much more difficult financial situation—perhaps even penury, relative to what they would have had if they had kept their original gender?

Dr Lynne Jones (Birmingham, Selly Oak, Labour)

That is precisely the point of the amendment. I wanted to draw attention to the principle of transitional arrangements and of not withdrawing benefit entitlement from someone currently in receipt of such a benefit. I hope that the Government will accept that the amendment is a reasonable and compassionate provision for a small number of people.

Ms Maria Eagle (Parliamentary Under-Secretary (Minister for Disabled People), Department for Work and Pensions; Liverpool, Garston, Labour)

I begin by congratulating my hon. Friend the Member for Birmingham, Selly Oak on the assiduous care with which she has followed legislation in general and this Bill in particular to ensure that this small group of people is properly treated. However, there are difficulties with the amendment, which I shall set out.

My hon. Friend made it characteristically clear that the amendment deals with the state pension entitlement of the small number of female to male transsexual people who are over the age of 59, and would enable them to retain their category A retirement pensions. As she said, the purpose is to ensure that they are entitled to that pension at the appropriate age and rate for women instead of the appropriate age and rate for their acquired gender. As she helpfully told us, we are talking about a small group of people, and I have no reason to doubt her figures, which I am sure are as accurate as any that could be produced.

Under the amendment, however, certain female to male transsexual people would undoubtedly be treated differently from other people of their acquired gender, because they would be able to claim their category A retirement pension at the same age as women rather than men once they were recognised in their new gender. I make no comment on why my hon. Friend has tabled the amendment, but if we accepted it we would end up treating a very small group of men differently from all other men.

My hon. Friend is very knowledgeable about the social security system, but I often think that it is easy for outsiders who do not have to deal with it to say, ''Make an exception for this small group of people. It would be beneficial to them.'' I accept that, but it is harder to make exceptions for small groups than for large ones in the social security system, because that leads to administrative complexities.

My hon. Friend and the hon. Member for Daventry referred to the precedent of the transition to an equal age of entitlement to state retirement pensions. As hon. Members will know, that process will begin in 2010 and be completed in 2020, by which happy date Social Security Ministers will no longer have to deal with the difficulties thrown up by gender differences in entitlement. I assure hon. Members who have not had to deal with such problems—the one or two who have done so, including my hon. Friend the Member for City of York, who is not present, will know this—that they are among the most difficult that a Social Security Minister must face. Although we all look forward to the happy day when equalisation occurs, the transition

to an equal age for general state retirement entitlement is provided for in law by a derogation from the directive, and we cannot use that derogation in the way that my hon. Friend suggests to ensure that the small group of individuals that we are discussing does not lose out.

The Bill does not treat such individuals differently from anyone else of their acquired gender, but that would be the effect of the amendment. The creation of such a special category raises the question of whether those affected would seek to be treated as a woman for some purposes and as a man for others. After all, the Bill is about equality and legal recognition in the acquired gender. In deciding when and whether to seek legal recognition, the person concerned will have to take all the implications into account. In that regard, I hope that the comprehensive information that we shall make available will ensure that they at least have proper information about those implications. There will be guidance.

Sadly, those who are most likely to lose out as a result of the processes are female to male transsexual people who have gained recognition and therefore might be divested of their retirement pension or might not be able to claim their retirement pension as soon as they otherwise would have done. However, they will be entitled to other benefits, such as jobseeker's allowance or pension credit, and we believe that the fiscal impact is likely to be minimal.

My hon. Friend talked about means-tested benefits. Pension credit entitlement gives single people at least £102.10 a week, and couples at least £155.80. That is without the savings credit, which of course comes in only after reaching the age of 65. However, we are talking about the guaranteed credit element of the pension credit. That would certainly provide proper recompense for many people.

It is likely that a female to male transsexual person aged between 60 to 64 on a low income would already be eligible for pension credit and could already be receiving it on top of the state pension. For example, a female pensioner aged 62 whose only income was the basic state pension of £77.45 a week would be eligible for £24.65 a week pension credit, to bring her weekly income up to the guaranteed minimum of £102.10 a week. If that person were to change gender at the age of 62, he would lose entitlement to the state pension, but assuming no other changes in circumstances, he would be entitled to £102.10 a week in pension credit. There would be no financial loss. A person over the age of 60 is guaranteed a minimum income, regardless of whether that is paid by way of a combination of state pension and pension credit or by pension credit alone.

My hon. Friend has characteristically identified an even smaller group of people who could be adversely affected. That is female to male transsexual people in low-income jobs who would not be able to claim pension credit, although they can currently get their

state pension. Although those people might become financially disadvantaged on gaining recognition in their acquired gender, their situation would not be any different to that of other men in an equivalent situation. They may also qualify for working tax credit if they meet the conditions for entitlement. It would depend on individual circumstances.

Dr Lynne Jones (Birmingham, Selly Oak, Labour)

My hon. Friend says that such individuals would be no worse off than other men. However, the point that I was trying to make with the amendment is that those individuals have suffered extensive discrimination throughout their lifetimes, which has prevented them from making the most of their employment or earning opportunities. Now that they have some chance of recognition and respect in their acquired gender, they have to choose between that and losing out financially. Other men have not had to face that difficult lifetime.

Ms Maria Eagle (Parliamentary Under-Secretary (Minister for Disabled People), Department for Work and Pensions; Liverpool, Garston, Labour)

I understand what my hon. Friend is saying, and I accept that for a small number of people that problem is thrown up by seeking a gender recognition certificate at that particular age. However, the principles of the Bill are such that it is not easy—and I would argue that it is not desirable—to make exceptions, even in difficult cases, for such a small group of people, despite the fact that there has been a difficult history of employment.

There is no doubt that the losses would be minimal. Most people would be able to get pension credit. If their employment history were such that they were quite poor, they would be entitled to pension credit and the possibility of a higher pension at age 65. The social security system provides for people who are likely to face severe financial hardship not to do so and helps to alleviate that. Those who are working, perhaps in low-paid jobs, would not be entitled to pension credit, but the working tax credit is available if there is an entitlement.

We do not believe that there would be extensive examples, or even a small number of examples, of people losing out financially in a way that would make it sensible for us to amend the Bill. I know that my hon. Friend feels very strongly about the matter and may not agree with that analysis. None the less, it is the Government's analysis, and I hope that she will understand—even if she does not accept—our reasons for believing that the amendment should not be accepted.

Dr Lynne Jones (Birmingham, Selly Oak, Labour)

I appreciate what my hon. Friend the Minister has said. She will understand that her remarks are not entirely unexpected, and that I will raise the issue again later in our consideration of the Bill. For the moment, however, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 5 agreed to.

Clause 14 ordered to stand part of the Bill.

Schedule 6Sex discrimination