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Pensions Bill [HL]

My Lords, the amendment seeks to provide a remedy for a group of older transsexual people who have missed out on full state pension rights because the Gender Recognition Act does not allow for retrospective legal recognition of a person’s acquired gender. This is a very complicated area, as my noble friend Lord Boswell pointed out. He spared us some of the detail when he introduced the amendment, but I should take a little time to outline the issue and give him the up-to-date information on the current position. A transsexual person is someone who desires to live their life permanently in the opposite sex to that which they were assigned at birth; although ““assigned”” might be the wrong word. This desire often stems from a medical condition called gender dysphoria. The Gender Recognition Act, effective from April 2005, allows transsexual people, through the granting of certificates, to gain recognition of their acquired gender for all legal purposes. It covers only people who have suffered from gender dysphoria. It is a general principle of our legal system that the laws relating to legal status should have only prospective effect. This ensures legal certainty and clarity. There was no reason to depart from this principle when the Gender Recognition Act was introduced, as my noble friend will be fully aware. Although the Act established future rights, a question remained over the past. The position on the equal treatment rights of transsexual people for periods before 2005 was tested in the domestic and European courts. In 2006, the European Court of Justice held that it was discriminatory not to have had a means of recognising a person’s acquired gender, for social security purposes, prior to the introduction of the Gender Recognition Act. However, importantly, the court left it up to the UK Government to set the conditions for granting equal treatment for periods prior to the introduction of the Gender Recognition Act in 2005. The European Court clearly considered that it provided adequate cover for periods after that date. Perhaps I may give my noble friend more up-to-date figures than those he might have. Records held by HMRC suggest that around 750 people in the UK are likely to gain from the European Court ruling, compared with the figure of 50 that he imagined. Under that ruling, where a person is successful in their equal treatment claim, we would need to make increased state payments on the basis that they had foregone all entitlement from the age of 60 or the date of surgery, if that was later. The costs of making such payments would amount to somewhere between £9 million and £38 million over the lifetime of the award. One can recognise the level of uncertainty surrounding that wide spread. That is by no means the end of the story. Since the European Court ruling, we have had a series of decisions in domestic courts intended to clarify what will be acceptable conditions for establishing legal recognition of a person's acquired gender in respect of past periods. I accept that the constantly shifting legal position has not been helpful to those affected by the Court’s decisions—nor, I might add, has it been helpful to the department. I am sympathetic to the spirit of my noble friend Lord Boswell’s amendment here. Amendment 56 would cover equal treatment for periods both before and after the introduction of the Gender Recognition Act. The intention, as I understand it, is that it would apply to someone on condition, first, that they had been living in their acquired gender in the two years before April 2005; or, secondly, that they had obtained a full gender recognition certificate in the two years after that date. However, under the terms of the Gender Recognition Act, a person must end any pre-existing marriage before they can be granted a full gender recognition certificate. As a result, the marital status of those who met the first condition would have no bearing on their equal treatment rights, but a marriage bar would be applied to those able to fulfil only the second condition. Amendment 56 would therefore go further than is required to provide equal treatment rights in respect of periods prior to the Gender Recognition Act coming into force. My noble friend’s amendment would capture all those who met either of the two conditions contained in it, with no regard given to the age at which such a person had transitioned. Those who transitioned later in life—say at age 70—would be eligible for arrears in state pension for ages 60 to 65, even though they had been living in their birth gender at the time. By ““transitioned”” I mean the point in time from which a person can be said to have met the minimum conditions required to gain equal treatment rights. In terms of my noble friend Lord Boswell’s amendment, this would be where they had been living in their acquired gender for two years prior to the introduction of the Gender Recognition Act, or where they obtained a full gender recognition certificate within two years of the introduction of the Act. However, there are good reasons why retrospective legislation is to be embarked on with great caution, and only in exceptional circumstances. It inevitably results in the complicated business of attempting to reconstruct past entitlements based on the historic circumstances of potential beneficiaries. In attempting to legislate for the past, my noble friend has encountered the same conundrum faced by us all, as he admitted in his fascinating opening speech: where does one draw the starting line? Amendment 56 would not cover all those too old to benefit from the introduction of the Gender Recognition Act. Those who started their transition after April 2003 and those who, for whatever reason, obtained a full gender recognition certificate after 2007, fall outside its scope. I fear that there is no perfect solution to be found. My noble friend suggested that in his remarks. Wherever one draws the line—this is implicit in setting conditions—there will always be those who fall on the wrong side of it. My noble friend has created a solution for one group, but at the cost of creating another group who would not see their expectations met. So, although, as I said, I sympathise with the intention behind my noble friend’s amendment, I fear that it overlooks the fact that other, equally deserving groups can be identified who have missed out as a result of rule changes. That is the nature of the thin end of the wedge that he warned about, and the nature of policy evolution. For example, many women now in their 70s and 80s draw only the small married women’s pension because they were too old to benefit from the various pension reforms since the 1970s that were designed to improve women’s pension outcomes by, for example, providing cover for periods spent out of the labour market raising children. Had they been younger, they would be enjoying a significantly higher pension entitlement—double or more. In my view, Amendment 56 is unnecessary. The European Court ruling provides a remedy for those who meet domestic conditions that have been set by the Court of Appeal. To go further than what is required of us under European law, as my noble friend’s amendment does, would in effect gold-plate the European Court’s ruling. In order to meet our obligations under European law, the department is setting up a specialist team to determine equal treatment claims in line with the Court of Appeal ruling. I know that one of my noble friend’s purposes in raising this issue was to get a full update on the current situation, and I hope that I have provided that, as well as some encouragement that many transsexuals in this position will see an improvement as a result of this process. As a result of the efforts of the team that we are assembling to sort out the matter, I therefore urge my noble friend to withdraw his amendment.