Christie Elan-Cane challenged the Home Office’s refusal to issue a passport with an “X” marker. The Supreme Court accepted that non-gendered identity fell within private life under article 8. The question was whether, in 2021, that right required the UK to provide a passport reflecting that identity.
Elan-Cane identifies as non-gendered and had repeatedly asked for an alternative to the “M” or “F” passport marker. The Home Office continued to require a binary designation.
Her Majesty’s Passport Office issues passports at the Home Secretary’s discretion under the Royal Prerogative. Applicants must state whether their gender is male or female; if none is stated, the gender on supporting documents is used. The passport then records “M” or “F”. People who have acquired a gender different from that recorded at birth can obtain a passport in the acquired gender on production of a gender recognition certificate, a re-registered birth certificate, or a doctor’s letter. The policy makes no provision for a non-gendered marker. The appellant contended that this breached the Convention rights of people who identify as neither male nor female.
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Policy reviews and international practice
A Home Office review identified uses for gender markers in identity and border checks. It also raised cost and the consistency of passports with other official records. Ministers had reviewed the policy without introducing an alternative marker.
International aviation standards permitted “X”. At the hearing only a minority of Council of Europe states permitted an alternative marker, and they differed about the circumstances in which it was available.
The courts below
Jeremy Baker J dismissed the judicial review claim. He accepted that identification as non-gendered fell within private life under article 8, but held that there was no positive obligation to issue an “X” passport. The margin of appreciation was relatively wide: the prejudice from the passport policy was less compelling than the appellant’s interest in wider recognition; there was no sufficient European consensus or trend; security justifications existed; and the Government could pursue a coherent system of gender recognition and consider change as part of a broader review. The same reasons justified any difference in treatment under article 14 read with article 8. It was also arguable that there was no relevant difference, because neither the appellant nor the suggested comparators could obtain a passport that did not specify gender.
The Court of Appeal upheld the decision, although its reasoning on article 14 differed. King LJ, with whom Irwin and Henderson LJJ agreed, accepted that non-gendered identification was an aspect of private life, but found no positive obligation and no unlawful interference. There was nothing approaching a European consensus, so the margin was relatively wide. She rejected the security argument because the international standards had long permitted “X” and no security difficulty with visitors from countries using that marker had been articulated. She accepted, however, that gender recognition needed a coherent approach across government and could not be considered through passports alone. She found a difference in treatment, because people who identify as male or female can obtain a corresponding marker while people who identify as non-gendered cannot, but held that the difference was justified for the same reasons as the article 8 claim.
Article 8
Lord Reed, with whom Lord Lloyd-Jones, Lady Arden, Lord Sales and Lady Rose agreed, noted that no Strasbourg judgment establishes an obligation to recognise a gender category other than male or female, or to issue a passport without a gender indication. It was no longer disputed that non-gendered identification is an aspect of private life. The claim was properly analysed as a positive-obligation case. The applicable principles require a fair balance between individual and community interests. Relevant factors include the importance of the interest, whether fundamental values or essential aspects of private life are involved, the impact of any discordance between social reality and the law, the coherence of domestic administrative and legal practices, and whether the alleged obligation is narrow or broad and how burdensome it would be. The margin of appreciation is narrower where a particularly important facet of existence or identity is at stake, but wider where there is no consensus, especially on sensitive moral or ethical issues, or where competing interests must be balanced.
The proceedings concerned the passport designation. They did not ask the Court to decide whether the law should recognise a non-gendered category generally. Lord Reed assessed the practical effect of the particular policy on the appellant and distinguished cases in which identity documents had exposed an individual to persistent difficulties in daily life.
On the burden, Lord Reed accepted that security, cost and coherence were relevant. Evidence from senior officials explained that biometrics and facial recognition are not universal and do not remove human checking where automated gates refuse entry or a security warning is triggered. Gender can filter records on watchlists. The Court of Appeal should not have dismissed this evidence so readily. The international organisation’s permission to use “X” does not mean that choice has no security implications, and the United Kingdom is not alone in treating the marker as significant. The Secretary of State’s assessment therefore deserved weight. The 2014 cost estimate of about £2 million, likely to have increased, was relevant but not conclusive.
Coherence carried the greatest weight. The challenge concerned only passports, but the Secretary of State was not obliged to treat that issue as wholly separate from the wider system. Legislation generally assumes that everyone is male or female. Examples include rights of succession, certain criminal offences, provisions about birth, maternity, marriage and civil partnership, the Gender Recognition Act 2004, and equality legislation. Public services such as prisons, single-sex hospital wards, some refuges and single-sex schools also proceed on a binary basis. Whether further categories should be recognised, and on what basis, raises complex issues with wide implications. A legally and administratively coherent approach was therefore important.
On the evidence in 2021 there was no European consensus on an obligation to issue such passports. The Court concluded that the state had a wide margin of appreciation. Coherence across public administration weighed particularly heavily in the balance.
Article 14
The article 14 complaint was that people identifying as male or female can obtain a corresponding marker, whereas the appellant cannot. In essentials it was the same complaint as the article 8 claim. The aims of refusing to treat the appellant as an exception, including maintenance of a coherent approach, were legitimate. Given the wide margin of appreciation, the claim was rightly rejected.
The Human Rights Act and In re G
The appellant argued that domestic courts should nevertheless require an “X” passport under the Human Rights Act, relying on dicta in In re G (Adoption: Unmarried Couples). Those dicta suggested that, where Strasbourg would treat a question as within the national margin of appreciation, a domestic court could still find a violation of a Convention right.
Lord Reed disapproved the observations relied on in In re G. Domestic courts could apply established Strasbourg principles to new facts. In his view the Human Rights Act did not permit judges to create a wider Convention obligation simply because the European Court would allow states a choice.
Verdict: The Supreme Court unanimously dismissed the appeal. On the law and circumstances it considered in 2021, article 8, alone or with article 14, imposed no positive obligation to issue an “X” passport.
Source: R (on the application of Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56
