UK’s highest court confirms when it will hear landmark case on gender-neutral passports

Vic Parsons
·3-min read

A long-running legal fight for ‘X’ gender markers on passports will be heard by the UK Supreme Court in July.

The case, which was first heard by the High Court in 2018, is brought by campaigner Christie Elan-Cane, who has fought for legal and social recognition as a person of non-gendered identity for almost three decades.

Applicants for a UK passport must indicate whether they are male or female in a signed declaration. Elan-Cane argues that it is discriminatory for the UK Home Office to refuse to offer passports with an ‘X’ gender marker for people who are not male or female, such as non-binary people.

“Legitimate identity is a fundamental human right but non-gendered people are treated as though we have no rights,” said Elan-Cane, whose pronouns are per/per/perself.

“The UK government refuses to acknowledge our existence as it continues to ignore our disenfranchisement while its systems and bureaucracy render us socially invisible,” per said.

“The case for ‘X’ Passports will now be heard before the UK Supreme Court in July 2021 where I hope finally to get justice on this matter.”

After losing at the High Court in 2018, Elan-Cane’s appeal was heard by the Court of Appeal in 2020, which also ruled against per appeal for ‘X’ gender markers to be introduced on UK passports.

The Court of Appeal said that the Home Office policy requiring passport holders to choose an ‘M’ or ‘F’ gender marker is not unlawful, but emphasised that people whose gender identity is non-gendered or non-binary have a right to respect.

The court found that the right to respect for private life under Article 8 of the European Convention on Human Rights does include a right to respect for a person’s non-gendered identity, which marked the first time a British Court has recognised that Article 8 guarantees a right to respect for those who identify outside the binary belief of male and female.

Gender-neutral passports are issued in more than a dozen countries.

Australia, Austria, Canada, Denmark, Germany, Iceland, India, Malta, Netherlands, New Zealand, Nepal, Pakistan and Uruguay all provide an ‘X’ gender option in their passports.

‘X’ passports, also called “gender-neutral passports”, comply with UN International Civil Aviation Organisation accepted standards for Machine Readable Travel Documents, and the UK recognises ‘X’ gender markers on passports where issued in another country as a valid travel document at its border control points.

Jemima Roe, associate at law firm Clifford Chance, which represents Elan-Cane pro-bono, said: “This case raises important questions regarding the right to respect for individuals’ identity, specifically for those who identify as neither or not exclusively male or female.

“Access to “X” passports is crucial for the protection of the human rights of this demographic, who are otherwise forced to use a passport which misrepresents their identity. Clifford Chance is proud to be working with Christie Elan-Cane and Blackstone Chambers to argue this case before the Supreme Court.”

The Supreme Court will hear the case on the 12 and 13 July, 2021.