The Supreme Court has dismissed an appeal for ‘X’ gender markers to be made available to British passports holders.
Brought by non-gendered activist Christie Elan-Cane, the case became the first-ever trans civil rights case to be heard by the UK’s highest court in July 2021.
In a short oral statement, Lord Read said the court had “unanimously dismissed” Elan-Cane’s appeal.
Read said the Supreme Court agreed with the government’s position, which Home Office lawyers argued in court, that making ‘X’ gender markers available on passports would have “adverse implications for the security aspects for the use of passports” and “result in substantial administrative costs”.
Elan-Cane, whose pronouns are per/per/perself, argued that the Home Office’s refusal to provide a passport with an ‘X’ gender marker contravened per right to respect for private life, which is guaranteed by article eight of the European Convention on Human Rights.
Reading the Supreme Court’s ruling, Lord Read said that Elan-Cane’s right to respect for per private life is “outweighed by the public interest” in “maintaining a coherent approach across government and the legal system… when it comes to which gender categories, beyond male and female, should be recognised”.
Australia, Austria, Canada, Denmark, Germany, Iceland, India, Malta, The 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.
In an emailed statement ahead of the verdict being released, Elan-Cane said: “Legitimate identity is a fundamental human right but non-gendered people are treated as though we have no rights. The battle for ‘X’ passports has been long, hard and totally unnecessary.
“I hope that justice is finally served on 15 December however my legal team and I remain committed to taking this case to the European Court of Human Rights in Strasbourg if we cannot get justice in the UK.”
The battle for ‘X’ passports fought by Christie Elan-Cane
The case was been brought by equality campaigner Christie Elan-Cane against the government’s policy not to offer ‘X’ gender markers in British passports. Elan-Cane has campaigned for almost 30 years to achieve legal and social recognition.
The case before the Supreme Court in July 2021 was first heard by the High Court in 2018, and that judgment was appealed at the Court of Appeal in 2020. The case concerned HM Passport Office’s policy that only ‘M’ or ‘F’ gender markers are available in British passports.
Elan-Cane lost both legal fights, but both the High Court and the Court of Appeal ruled that per right to respect for private life was engaged under the European Convention on Human Rights.
Applicants for a UK passport must indicate whether they are male or female in a signed declaration. Elan-Cane argued 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-gendered people like perself and non-binary people.