Non-Binary Passports: R (on the application of Elan-Cane) (Appellant) v Secretary of State for the Home Department (Respondent) [2021] UKSC 56

4 July 2022 by

Background

The Appellant in R (on the application of Elan-Cane) (Appellant) v Secretary of State for the Home Department (Respondent) [2021] UKSC 56 was assigned female at birth, however during and after puberty they felt revulsion at their body and underwent surgery in 1989 and 1990 to alleviate those feelings. The Appellant who identifies as non-gendered, is a campaigner for the legal and social recognition of this category. The provision of “X passports” are a focal point of the Appellant’s campaign.

The question in this case is summarised as follows: does the European Convention on Human Rights impose an obligation on a Contracting State, when it issues passports, to respect the private lives of individuals who identify as non-gendered by including a non-gendered “x” marker for the passport holder’s gender, as an alternative to the markers for male and female?

If not, is such an obligation imposed on the Home Secretary by the Human Rights Act 1998?

Passports in the UK are issued by Her Majesty’s Passport Office (HMPO) at the discretion of the Home Secretary in exercise of the Royal Prerogative.

Lord Reed, giving the leading judgment, dismissed the appeal on a number of grounds discussed below.

Previous Reviews of Gender Markers in Passports and Other Documents

The policy in relation to gender marking in passports was in fact reviewed by HMPO in 2014. The review noted a variety of uses for the record of a person’s gender for passports. The judgment notes the following uses:

  1. Prior to obtaining a passport, to assist in verifying the identity of applicants for passports when compared to other documents provided such as a birth certificate.
  2. Once a passport has been issued, to assist in verifying the identity of the passport user when cross-referenced with records or the appearance of the person in front of, for example, border staff or other bodies such as banks.
  3. A third use for the gender marker in passports identified from the review was to enable officials to deal appropriately with members of the public in passport-related matters, for example terms of address and physical checks at borders, without their having to ask embarrassing questions about the passport-holder’s gender. The issue of whether such questions are in reality embarrassing for people in the modern world, and whether such questions could be rephrased to be open enough not to cause embarrassment on either side, appear not to have been addressed either by the review or by the Supreme Court in its judgment ([9]-[11]).

HMPO’s 2014 review acknowledged that two groups might be negatively affected by the current policy – people in the process of transitioning from one gender to another, and people who did not consider themselves to be either male or female. The review also noted that despite these potential negative outcomes there had been very few requests for an “X” provision other than from the Appellant. Further, there were no calls for change from gender representative groups or civil liberties groups ([12]).

The conclusion of the 2014 review was that introduction of an “X” marker in passports would put HMPO in isolation with the rest of Government and society as there is no legislative provision for the recognition of individuals as non-gendered. HMPO would be issuing a document which was not recognised by other parts of Government and administrative costs of about £2m would be incurred ([13]).

Several other Government reviews in relation to gender markers on documents generally have been initiated – those have concluded with no further recommendations for change or have been cancelled or delayed because of the pandemic. In March 2021 the Government decided that work should resume, focusing on the issue of introducing gender-neutral markers in identity documents (including passports) and the potential impact of such a change on the provision of public services and on systems across Government ([15]).

History of Proceedings

The claim was dismissed in the High Court in 2018. While the Court found that Article 8 was engaged, it held that there was a broad margin of appreciation in this area given the absence of consensus among Convention Contracting States as to the recognition of a neutral gender identity.

The Court further held that the pre-eminent consideration in this claim was striking a fair balance between the competing interests of the individual and the community as a whole. When determining whether Article 8 imposed upon the State a positive obligation to ensure that a person’s non-gendered identification was respected, significant weight should be given to the Government’s justifications and to the legitimate aim of “maintaining an administratively coherent system of gender recognition across all government areas and legislation.” The Government was, therefore, entitled to consider a change to the policy as “part of a more fundamental review of policy in relation to these issues across government” (at [22-25] of the Supreme Court’s judgment).

The Court of Appeal upheld the decision of the High Court, but for different reasons. King LJ accepted that the Appellant’s identification as non-gendered was an aspect of private life but agreed that there was no positive obligation on the State to issue an “X” marker, nor did HMPO’s current policy interfere with the Appellant’s article 8 rights. King LJ further accepted there was no European consensus on this issue either in the wider sense or specifically regarding passports.

King LJ pointedly rejected the Secretary of State’s submissions in relation to national security ([27]) but did accept that it was important for the Government to pursue a coherent approach to the issue of gender recognition across all areas where it arose.

The Court of Appeal also considered the State’s margin of appreciation but, in short, found that there was a wide margin within which they could take their decision, particularly where striking a balance between competing private and public interests and Convention rights ([26]-[35]).

The Supreme Court’s Decision

The Supreme Court turned first to the factors affecting the Appellant.

Appellant’s Arguments

The Appellant wishes to obtain legal recognition as a non-gendered person and made arguments in relation to the distress, or sometimes harassment, endured by non-gendered people who had to present as male or female. The Supreme Court held that the Appellant would, regardless of the outcome of this case, continue to be treated as a female for legal purposes. In the UK, there is rarely a need to establish one’s identity and in the case that one does need to prove one’s identity another document could be used which does not overtly contain a gender marker, such as a driving licence ([38]).

The Appellant also raised the fact that in applying for a passport, applicants had to select either “male” or “female” on the form, and then make a declaration as to the accuracy of the information. The Supreme Court said that because the purpose of providing that information is not to inform HMPO about the applicant’s feelings towards their gender identity, they are not being forced to lie about those feelings. As the gender record on a passport can be used for purposes associated with the passport holder’s appearance and physiology rather than their innermost thoughts, the Supreme Court found that the prejudice alleged by the Appellant was not made out.There is a discrepancy here as where the form requires an applicant to state their gender as ‘male’ or ‘female’, on a passport this is displayed as ‘sex’. Therefore the Court’s comments are correct in terms of what is displayed on the passport perhaps being more closely linked to physiology rather than identity, but at the point at which one must fill out the form, it is an identity which is sought, and thus the available options do not provide for the correct response in the case of an applicant with a non-binary identity ([39]).

The Appellant also raised the fact that it was inconsistent for the NHS to have treated their gender dysphoria by providing surgery, but for the Home Office not to provide the Appellant with an “X” passport. The Supreme Court identified two flaws in this argument: first, that the NHS did not recognise the Appellant as a non-gendered person but a person suffering from gender dysphoria, and treatment was provided to alleviate that condition. Second, just because the Government funded the Appellant’s treatment via the NHS, does not mean that it should in addition bear the “far greater costs” which would be involved in introducing “X” passports  ([45]).

Home Office’s Arguments

There were three principal points made on behalf of the Secretary of State against the introduction of “X” passports: public interest in security, costs, and coherence of administrative and legal practices within the domestic system ([46]-[54]).

In relation to King LJ’s comments about the security point in the Court of Appeal, Lord Reed responded directly, stating: “The court should not have dismissed the issue so easily, particularly bearing in mind the limitations to its competence, both institutional and constitutional, in relation to questions of national security.” ([47]).

On the subject of costs, the Supreme Court noted that the costs estimated by the 2014 review at £2m were likely to have increased by now, and that although this is a relevant factor it is not conclusive ([50]).

The third point, about the coherence of the administrative and legal system, is addressed in greater detail by the Supreme Court. The judgment explores the various facets of UK society which are underpinned by a “binary approach to gender” such as prisons and hospital wards, as well as schools and rape crisis centres. The provision of these public services are, per the Supreme Court, “underpinned by, or permitted by, legislation” ([53]). The Supreme Court found that the need to have a legally and administratively coherent system for recognition of gender was an important factor ([54]).

The Court then turned its focus to the width of the margin of appreciation before it – an “important conceptual mechanism by which the European Court exercises such caution” in situations where a positive obligation is imposed by the Convention requiring Contracting States to modify their laws or practices ([55]). The Court concludes that it does not have the power to “leap ahead” of Strasbourg in its interpretation of Convention rights ([97]). Therefore, as in this case, where it has been found that there is no positive obligation per the Convention or any existing legislation or case law, it would be wrong for the Court to come to a conclusion at which the European Court would be unlikely to arrive. In reaching this decision the Supreme Court expressly disapproved the comments of Lord Hoffman in Re G[1] ([74]-[108]).

International Practice

There is some discussion in the judgment of other countries that currently permit passports to bear a gender indicator other than male or female. Those countries are New Zealand, Australia, India, Nepal, Pakistan (in the case of transgender people) and Canada. Interestingly, the provision in India, Nepal and Pakistan appears to arise from a cultural history of treating hijras or khawaja sara[2]as a distinct gender category ([16]-[21]).

Future of Non-Gendered Passports

Were there to be a non-gendered option as standard across all identity documents, this matter would fall away. There is, however, apparent reluctance on the part of the Government to address this issue. The security issue is not articulated fully in the Supreme Court judgment. It is unclear the extent to which security provision would be affected by this change, especially if those with foreign “X” passports are already accommodated by our system.

Given the availability of biometrics, and society’s more modern attitude to aesthetic gender “norms”, perhaps there is a decreasing need for one’s gender identity, or even sex at birth, to be provided on a passport at all.

There is a Bill addressing the matter of gender neutral passports currently at the second reading stage in the House of Commons, sponsored by Liberal Democrat MP Christine Jardine. There is no date yet for the second reading but updates can be found here.

Natasha Isaac is a barrister at 1 Crown Office Row, Brighton.


[1] Re G (Adoption: Unmarried Couples) [2008] UKHL 38

[2] Traditionally translated as “eunuch” but can also apply to intersex, transgender, or asexual people

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