• Robert Spicer

Human rights: gender identity: passports

HUMAN RIGHTS

Passport gender

Case R (on the application of Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56, Supreme Court

Facts EC was born female, identifying as non-gendered. In 1995 she asked the Passport Office if a passport could be issued without making a declaration of being male or female. She was told that it could not. She made similar inquiries in 2005, 2010 and 2016 with similar results. In 2014 the Passport Office reviewed gender marking in passports. It concluded that recognising a third gender would put it in isolation from the rest of government and society and would result in £2 million administrative costs. EC argued that the policy contravenes the right to respect for family life under Article 8 of the European Convention and the prohibition of discrimination under Article 14. That argument was dismissed by the High Court and by the Court of Appeal, EC appealed to the Supreme Court.

Decision 1. The appeal was dismissed.

2. There was no violation of EC’s Convention rights.

3. EC’s interest in being issued with an “X” passport is outweighed by public interest considerations. These included the importance of maintaining a coherent approach across government to the question of whether, or if so, in what circumstances any gender categories beyond male and female should be recognised.

4. It was clear that this was a matter in which states would be awarded a high degree of latitude by the European Court, having regard to the balance of any consensus among states which are parties to the Convention, the complexity and sensitivity of the issue, and the need for a balance to be struck between competing private and public interests.

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