A court has ruled that people cannot be gender neutral on their passports

Tuesday, 10th March 2020, 5:37 pm
Updated Tuesday, 10th March 2020, 5:39 pm

A campaigner has lost a legal challenge against the government at the Court of Appeal over gender neutral passports.

Christie Elan-Cane, who wants passports to include an “X” category for individuals wishing to identify as gender neutral, believes the current UK passport policy infringes the right to privacy.

At a hearing in December, three senior judges were told that the Government’s current policy on gender neutral passports is ‘unlawful’ and breaches human rights laws.

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Elan-Cane took the case to the Court of Appeal after a judicial review action was dismissed by the High Court in June 2018. The appeal, which was contested by the Home Office, centres on the lawfulness of the current policy administered by Her Majesty’s Passport Office (HMPO), which is part of the Home Office.

'Policy breaches the right to respect private life'

It was argued that the policy breaches the right to respect private life, and the right not to be discriminated against on the basis of gender or sex, under the European Convention on Human Rights (ECHR).

But senior judges dismissed the appeal - a decision Elan-Cane described as "devastating".

The campaigner, who has been fighting for legal and social recognition for non-gendered identity for more than 25 years, added, "It is bad news for everyone who cannot obtain a passport without the requirement imposed by the UK government that they should collude in their own social invisibility.

"Legitimate identity is a fundamental human right but non-gendered people are treated as though we have no rights. It is unacceptable that someone who defines as neither male nor female is forced to declare an inappropriate gender in order to obtain a passport.”

'Current policy does not breach Article 8's right to a private life'

Delivering the judgment, Lady Justice King said it was "obvious and indeed beyond argument" that the facts of the case concern Elan-Cane's private life.

"No-one has suggested (nor could they) that the appellant has no right to live as a non-binary, or more particularly as a non-gendered, person," the judge said.

"In this case, however, the passport issue cannot reasonably be considered in isolation, given that the driver for change is the notion of respect for gender identity across the board.

"The court finds that there was no positive obligation on the state to provide an ‘X’ marker in order to ensure the right of the Appellant to respect for private life. Therefore, the current policy of Her Majesty's Passport Office does not amount to an unlawful breach of the Appellant’s Article 8 private life rights.”

Elan-Cane was refused permission to appeal to the Supreme Court by the Court of Appeal , but can still appeal directly to the Supreme Court to hear the case.

Kirrin Medcalf, of equality charity Stonewall, said, "Everyone must have the option of having their gender correctly recorded on their official documents, such as passports, if they choose.

"But currently, for non-binary people, since the government does not formally recognise non-binary identities, there is no option to accurately reflect their gender on official documents. As well as being dehumanising, a lack of legal recognition can cause many practical and legal difficulties."