Battle for gender-neutral passports reaches Court of Appeal

3 December 2019, 05:17

Christie Elan-Cane has launched the campaign
Christie Elan-Cane has launched the campaign. Picture: PA
EJ Ward

By EJ Ward

A campaigner who wants the government to provide gender-neutral passports will have their case heard at the Court of Appeal later in the last round of legal action.

Christie Elan-Cane has claimed the process for applying for a UK passport is "inherently discriminatory" as it requires individuals to state whether they are male or female.

Legal action has now reached the Court of Appeal after a judicial review into the process was dismissed by the High Court last year.

The Liberal Democrats have made an election pledge to add an “X” gender option to the passport.

Christie Elan-Cane, who has fought to achieve legal and social recognition for non-gendered identity for more than 25 years, says this is "unacceptable".

Speaking ahead of Tuesday's legal action, they said: "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."

They added: "The UK Government has consistently and consciously shown a determined unwillingness to accommodate non-gendered peoples' legitimate needs."

Passports currently only have male and female as options
Passports currently only have male and female as options. Picture: PA

During the High Court proceedings, Elan-Cane's lawyers challenged the lawfulness of the policy administered by Her Majesty's Passport Office (HMP0), which is part of the Home Office, arguing that it breaches human rights laws.

Ruling on the case in June last year, a judge said that although he was not at that time satisfied that the policy was unlawful, part of the reasoning for the decision was that a comprehensive review had not been completed.

Kate Gallafent QC, for Elan-Cane, argued that the 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).

The policy requires Elan-Cane to "make a materially false declaration in respect of that core aspect of the claimant's human personality or to forbear from holding a passport".

Sir James Eadie QC, on behalf of the Home Secretary, submitted that the policy does 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.

Anne Collins, of law firm Clifford Chance, said: "This case raises important questions regarding the right to respect for individuals' gender identity for those who do not identify exclusively as male or female, including members of the trans community, intersex people and those who identify as non-gendered.

"X passports are crucial to the protection of the human rights of this group of individuals, and Clifford Chance is proud to be working with Christie to appeal the High Court's decision on the issue."

The case will be heard on Tuesday.

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