Lack of gender neutral option on passport forms: no breach of human rights –
12 March 2020
R (on the application of Christie Elan-Cane) v Secretary of State for the Home Department with Human Rights Watch intervening  EWCA Civ 363 – read judgment
When we apply for a passport, we are generally asked to state on the form whether we are a man or a woman, and this is generally reflected in our passports. However, in our modern day and age, there are now more than two genders – some people can choose to define as gender neutral, essentially meaning that they don’t like to describe themselves using the normal terms of “man” or “woman”. MX Elan-Cane is one of those individuals. They sued the Home Office because there was no “X” (as in, no gender neutral) option on the passport form as it was a breach of their Human Rights. The High Court said that yes, this engaged Article 8 of the Human Rights Convention (the right to private and family life), but the current passport policy did not breach that right. The Court of Appeal agreed with the High Court, both that this engaged Article 8, but that the rights to a private life were not breached here.
Reasoning behind the High Court’s decision
Jeremy Baker J at first instance, noting that MX Elan-Cane had been detached from their assigned gender for most of their life, and that gender is an important factor in everyone’s personal identity, found that the underlying policy was rational and justified, meaning that the claimant’s Article 8 rights were engaged, but not breached.
In the Court of Appeal
The Court of Appeal unanimously dismissed the appeal, holding that the issue of a gender-neutral passport cannot be considered in isolation, as it is part of a wider effort to achieve recognition of a person’s gender identity. There is no positive obligation on the Government to provide an X marker in a passport, so the current policy is not a breach of Article 8.
There has been much work on this issue before. As both the High Court and Court of Appeal noted, the Women and Equalities Committee in Parliament, as part of an inquiry into transgender rights, recommended that the Government should create a third gender, allowing people who do not identify as either of the two pre-existing genders to identify themselves to others. The Government responded that it would keep the matter under consideration, but was noncommittal as to whether it would implement the changes recommended. At the European level, a report for the Council of Europe found that there were examples of states who issue gender neutral ID documents and that an X marker could be available to those who self-defined as gender neutral, but only in respect of ID documents.
Turning to the details of the Court of Appeal’s reasoning, the Court agreed that Article 8 was engaged because the case revolved around the appellant’s identity as a person, thus engaging their right to a private life (protected by Article 8).
As to whether there is a positive obligation on the state to provide such a marker, the Court agreed with the first instance judge that the state has a wide margin of appreciation in respect of balancing private rights against public interest – even where it involves a person’s gender identity. The Court also found that the use of a gender identity marker is a broader issue, concerned with more than identity documents. Indeed, King LJ makes it explicitly clear that
the reality is that, whilst this case is limited to passports, the driver for change is the broad notion of respect for gender identity.
….The passport issue cannot reasonably be considered in isolation.
The Court of Appeal noted that there is no consensus as to the use of gender identity markers throughout the European states party to the European Convention – presumably the states’ position identified in the report identified above does not equate to a “consensus”. The Court did recognise that there has been a development in Trans rights since the European Court of Human Rights’ decision in Rees v UK (decided in 1986) and Goodwin v UK (decided in 2001). For example, in Rees the ECHR said, “there is at present little common ground between the Contracting States in this area and that, generally speaking, the law appears to be in a transitional stage”. In Goodwin, 25 years after Rees, the European Court said that it would review state’s approaches “in the present conditions”, thus showing that there definitely has been some change in societal approaches. In a later decision in 2011 (Schalk v Austria) the Court said that there is an “emerging European consensus” regarding the recognition of a third gender. As King LJ concludes regarding consensus, there is definitely “a trend” towards recognising a third gender, but there is not yet a defined consensus. As an example of this trend, the Netherlands started issuing its first gender-neutral passports. On the subject of the margin of appreciation, and related to whether there is a consensus, the Court of Appeal commented that it seems that “the margin of appreciation can both vary over time as society evolves and consensus hardens”
Following the dismissal of their appeal, the appellant is now going to ask the Supreme Court to hear the case. The question is whether they will do so. The Court of Appeal refused permission to appeal, so now it depends on the Supreme Court itself. That Court is selective in the cases it chooses, only taking those cases that raise a point of law of general public importance and where the main point of law is an arguable one.
The prospective point of law on which any appeal could be based – namely, whether the lack of an X marker in a passport breaches human rights – may be one of general importance, since, as the Court of Appeal and High Court both recognised, gender identity is important to a person’s self-identity, which itself is important to the idea of being human. The tricky bit is whether the point of law is “arguable”. It may be said that the fact that the claimant was granted permission to bring a judicial review, and then permission to appeal, shows that the point may be arguable to some extent .
Ruairi Hipkin holds a bachelor’s degree in law and politics and a Masters in international human rights and humanitarian law.