High court backs UK’s refusal to issue gender-neutral passports

The equality campaigner Christie Elan-Cane has lost a high court challenge against the UK government’s refusal to issue gender-neutral, or X, passports.

Mr Justice Jeremy Baker upheld Home Office policy after the court was told it would affect other legislation, cost too much to change computer records and increase the need for consular support abroad for gender-neutral British citizens.

Elan-Cane, who has pursued the issue for more than 25 years, has claimed that non-gendered people suffer discrimination and are being deprived of their “legitimate identity”.

UK passports restrict sex designations to male or female. Ten countries permit their citizens to opt for a third category, X, or unknown.

Canada was the most recent to offer its citizens gender-neutral passports. Other country that allow a third option are Australia, Denmark, Germany, Malta, New Zealand, Pakistan, India, Ireland and Nepal. X passports are approved by the ICAO, the UN agency that regulates international air travel.

During the hearing, Kate Gallafent QC, for Elan-Cane, argued that HM Passport Office policy breaches the right to respect for 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).

She said: “For the claimant, obtaining and using a passport currently involves making a false declaration as to the nature of the claimant’s gender identity, which causes the claimant considerable distress.”

Sir James Eadie QC, on behalf of the home secretary, submitted that the policy did not interfere with rights under the ECHR.

He argued that if the policy constituted an interference with article 8 – the right to respect for private life – it was justified by the need to “maintain an administratively coherent system for the recognition of gender”, to maintain security and to combat identity theft and fraud, and “to ensure security at national borders”.

In his decision, Baker said: “The government is currently collecting and collating research material with a view to undertaking a comprehensive review of the issues both surrounding and those raised directly by the claimant in this case … [Elan-Cane] will be entitled to scrutinise with care the results of the government’s current review, which will be required to be undertaken without any undue delay.”

Elan-Cane said: “I am bitterly disappointed that my case for the judicial review of the UK government’s discriminatory passport policy was not upheld. Not just for myself but for everyone who is compromised by this policy.

“The UK’s passport application process requires applicants to declare whether they are male or female. It is inappropriate and wrong that someone who defines as neither should be forced to make that declaration.”

Elan-Cane, who was represented pro-bono by the law firm Clifford Chance, is considering whether or not to appeal.

Narind Singh, a partner at the firm, said: “Gender identity is a fundamental part of an individual’s intimate, personal identity and X passports are a crucial step in the protection of the human rights of this group of individuals, who otherwise face an unacceptable choice between forgoing a passport, and making a false declaration, and using a passport which misrepresents their identity.

“We are considering with Christie the possibility of seeking leave to appeal today’s judgment. We will continue to assist Christie in this fight. We welcome the court’s ruling that Christie will be entitled to scrutinise the outcome of the review that the government is undertaking, and we will continue to assist Christie to hold the government to account.”

Tom Mountford, a barrister who also represented Elan-Cane, said: “In this decision, the UK courts have, for the first time, recognised that the right to respect for an individual’s private life, guaranteed by article 8 of the European convention on human rights, includes the right to respect for the fundamental identity of non-gendered, intersex, trans and non-binary people identifying as neither, or not exclusively, male or female.”