Campaigner loses appeal over gender-neutral 'X' passport

10 March 2020, 05:32

Christie Elan-Cane will find out the decision of senior judges on Tuesday
Christie Elan-Cane will find out the decision of senior judges on Tuesday. Picture: PA
EJ Ward

By EJ Ward

Campaigner Christie Elan-Cane has lost a Court of Appeal challenge against the Government over gender-neutral passports.

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 in 2018.

Three senior judges will make a ruling on the claim the Government's current policy on gender-neutral passports is "unlawful" and breaches human rights laws.

Elan-Cane took the case to the Court of Appeal after a judicial review action was dismissed by the High Court in June 2018.

Christie Elan-Cane claims the passport application process is "inherently discriminatory" as it requires individuals to state whether they are male or female
Christie Elan-Cane claims the passport application process is "inherently discriminatory" as it requires individuals to state whether they are male or female. Picture: PA

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 the initial court case 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."

The British passport requires applicants to state their sex
The British passport requires applicants to state their sex. Picture: PA

The appeal, which is 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.

It has been 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).

At the December hearing, Kate Gallafent QC, for Elan-Cane, told the judges: "This is an important case in the anxious context of the proper understanding and respect for the intimate, human rights of the affected class - persons whose gender identity is neither, or neither exclusively, male nor female."

She said: "There is little which is more fundamental and deeply personal than an individual's gender identity."

Ruling on the case in June 2018, a High Court 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.

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.

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 Court of Appeal is due to announce its decision at 10.30am.

Comments

Loading...