Introduction

May a Non-binary British citizen require the UK Passport Office to issue them with a passport with an ‘X’ marker in the gender field, so that their gender is unspecified? The answer is no. There is no Act of Parliament regulating the issue of UK passports. Instead passports are issued under the royal prerogative. In that context, a challenge to a refusal to issue a passport with an ‘X’ marker is limited to being rights-based challenge such as whether the decision is compatible with the European Convention on Human Rights (‘ECHR’), as applied by the Human Rights Act 1998. No such challenge has yet succeeded.

‘One should be free to determine the course of one’s gendered life’ (Judith Butler)

‘Non-binary’ people identify their gender outside the male-female binary.  They form a distinct class, which may include or be classified in parallel with non-gendered people who identify as having no gender or who describe their gender as neutral. For present purposes, non-binary people may be contrasted with people whose binary polarity and particular pole is made explicit when they obtain a gender recognition certificate (under the Gender Recognition Act 2004), being recognised as a matter of law as female rather than male (or vice versa) and, in consequence of such recognition, whose sex as a matter of law becomes that of a woman (or if vice versa, that of a man).

Human Rights issues

In the case of The Queen (on the application of Elan-Cane) v The Secretary of State for the Home Department [2020] EWCA Civ 363 the Court of Appeal considered the position of a person who challenged the refusal of the UK government to allow them to apply for and be issued with a UK passport with an ‘X’ mark in the gender field, indicating gender ‘unspecified’. At the heart of the case was whether a non-gendered person had a human right to respect for private life (under Article 8 ECHR) and whether or not the refusal to allow a gender ‘X’ marker was a violation of that right. At first instance, the High Court had decided that Article 8 ECHR was engaged, however that the UK government’s policy did not amount to an unlawful breach of that right. On appeal, the Court of Appeal upheld the High Court’s determination.

International Practice

 Among the facts before the Court was the fact that the International Civil Aviation Organisation (‘ICAO’) allows countries to issue passports with either an ‘M’, ‘F’, or ‘X’ in the section of the mandatory machine-readable zone dealing with the sex. ‘M’ and ‘F’ indicate male and female, with ‘X’ meaning unspecified. At present 11 countries allow for ‘X’ markers in their passports. As of 2019 there are only five Council of Europe countries which make such provision.

The United Kingdom’s stance

On 3 February 2014 Her Majesty’s Passport Office (‘HMPO’) published a report on its ‘Internal Review of Existing Arrangements and Possible Future Options’ in relation to ‘Gender Marking in Passports’. It noted that as passports are issued at the discretion of the Secretary of State in the exercise of the royal prerogative, there are no legislative requirements in domestic law to change a passport to allow an ‘X’ marker. That may be so but another way of looking at it is that given the freedom from legislative constraint, HMPO could make such a change if it so desired.

For HMPO, there is no European or international consensus on this issue. Further, in relation to human rights considerations, it the UK government’s position that it is entitled to a wide margin of appreciation as to whether and to what extent it recognises non-gendered identity. HMPO position is that it has considered the issue and will continue to do so in alignment with societal developments. As of October 2016, HMPO’s stance was that any change “must be considered across Government, ensuring the wider impact has been properly considered, to make sure that there is an aligned, consistent approach underpinned by legislation.”

The Court of Appeal in Elan-Cane

As noted above, in Elan-Cane the Court of Appeal agreed with the conclusions of the High Court that Article 8 ECHR (the right to respect for private life) was engaged, however that UK government policy did not amount to an unlawful breach of that right. In the result there was no positive obligation on the government to provide an ‘X’ marker in UK passports.

The question of whether or not there was such an obligation, and the extent of any obligation, to make such a change was considered in detail by the Court of Appeal. As a beginning, it upheld the High Court’s conclusion that the Appellant’s Article 8 ECHR rights were engaged so that their right to respect for private life includes the right for them to be identified as non-gendered. Lady Justice King stated:

“46. There can be little more central to a citizen’s private life than gender, whatever that gender may or may not be. No-one has suggested (nor could they) that the Appellant has no right to live as a non-binary, or more particularly as a non-gendered, person. Indeed, a gender identity chosen as it has been here, achieved or realised through successive episodes of major surgery and lived through decades of scepticism, indifference and sometimes hostility must be taken to be absolutely central to the person’s private life. It is the distinguishing feature of this Appellant’s private life.”

As regards whether there was a positive obligation to recognise that right to live as a non-binary or non-gendered person through an ‘X’ marker in a UK passport, the Court considered three European Court of Human Rights ‘(ECtHR’) cases. The first was Rees v United Kingdom (App No 9532/81) (1987) 9 E.H.R.R 56. Rees considered the rights of trans-people to have their birth certificate amended to show their gender identity rather than the sex in which they were registered at birth. The ECtHR held that the UK was not in breach of Article 8 ECHR (the right to respect for private life) in refusing to permit such an amendment. It took into account that the proposed change would lead to far reaching legislative changes. It concluded that the UK was entitled to a wide margin on appreciation.

In Goodwin v United Kingdom (App No 28957/95) (2002) 35 E.H.R.R 18 the question arose again as to whether the State, by its failure to grant legal recognition to gender reassignment had failed to comply with the positive obligation to ensure the right of the applicant (a post-operative male to female transsexual) to respect for her private life.  The ECtHR held:

“72.The Court recalls that the notion of “respect” as understood in Article 8 is not clear cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case and the margin of appreciation to be accorded to the authorities may be wider than that applied in other areas under the Convention. In determining whether or not a positive obligation exists, regard must also be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention.”

Finally, in Hämäläinen v Finland(App No 37359/09) 37 B.H.R.C 55 the ECtHR considered further the issue of positive obligations concerning gender identity. Summarising the position of the ECtHR for the Court of Appeal in Elan-Cane, Lady Justice King observed thata positive obligation can refer to a requirement to accord status or recognition to a particular group (such as trans-people), creating an obligation of the type described as “broad and indeterminate” in Hämäläinen. Alternatively, it may refer to something specific, identified in Hämäläinenas “narrow and precise”, such as altering a birth certificate or the introduction of an ‘X’ marker.

Three factors

The Court of Appeal went on to consider three factors relevant to the extent of a positive obligation and the fair balance to be struck between private interests and the public interest:

• Factors which relate to the identity in question (the individual)
• Factors which concern the state and its systems (coherence)
• The position in other states in the Council of Europe (consensus)

As to identity, the Court of Appeal upheld the position of the High Court, where the Judge had stated:

“115….I am satisfied that the claimant has a justifiably strong personal interest in gaining full legal recognition as being non- gendered, the denial of which I can understand may well cause the claimant and others in the claimant’s situation strong negative emotions, I am less convinced that such strong emotions are justified by the current HMPO policy of not permitting the claimant to enter “X” in gender/sex field on the passport. I of course take into account the fact that passports may be used for identification purposes outside their use as a travel document. However, so too are birth certificates, which would not be affected by a change to the challenged policy, and which are likely to be considered of more fundamental importance upon the issue of sex and gender…”

As to coherence, the Court of Appeal upheld the position of the High Court, where the Judge had stated:

“121. Given the importance of the issues surrounding gender identification that have been raised in this case, it seems to me that the defendant is entitled to say that a change to the current HMPO policy ought not to be considered in isolation, but the Government should be able to consider it as part of a more fundamental review of policy in relation to these issues across government…”

As to consensus, for the Court of Appeal Lady Justice King stated:

“84. Looking at the totality of approach to gender identity issues world-wide and the information made available to the court, it seems to me that, whilst the direction of travel, or “trend”, is undoubtedly moving towards the recognition of the status of non- binary people, there is, as yet, nothing approaching a consensus in relation to either the broad and indeterminate issue of the recognition of non-binary people, or the narrow and precise issue of the use of “X” markers on passports which is before this court.”

Margin of Appreciation

On the question of the margin of appreciation to be afforded to states when the ECtHR (as an international supervisory court) considers their approach to human rights issues such as this one, in Elan-Cane the Court of Appeal considered the ECtHR’s case law. It noted that the margin of appreciation can vary over time as society evolves and consensus hardens. But that, in addition, it also can be wider or narrower at different stages of the process, for example first in the identification of a positive obligation, and then second in the subsequent domestic implementation of that obligation. At the implementation stage, where there is no consensus either as to the importance of the interest or how to protect it, states have a wider margin of appreciation when striking the balance between private and public interests, notwithstanding that an issue of an individual’s identity is at stake.

In UK courts the task in assessing Article 8 ECHR is not aided by references to the concept of a margin of appreciation. Instead, where it has been held that there is an interference with an Article 8 ECHR right, the UK courts must consider the interference with the right and decide whether the justification claimed for that interference is made out. In Elan-Canethe Court of Appeal upheld the view that the Appellant’s Article 8 ECHR right to respect for private life was engaged but that there was no interference with that right. The Court went on to state that even if there had been such interference, the Secretary of State had made out her claim of justification for not granting an ‘X’ marker, and her position would have represented a limited and proportionate interference with the private life right.

The Result and the Future – Is there Hope?

On the question of how to strike a fair balance  between the right to respect for private life (Article 8 ECHR) and the public interest, the High Court had concluded that the Appellant’s Article 8 ECHR right to respect for private life did not encompass a positive obligation on the part of the state to permit the Appellant to apply for and be issued with a passport with an ‘X’ marker and that the question of fair balance remained the core of the analysis.

On appeal the Court of Appeal upheld that position. However, it noted as Article 8 ECHR is engaged, there is a respectable argument that a time  is approaching when the consensus in the Council of Europe’s states will be such that there will be a positive obligation on states to recognise the position of non-binary, including intersex, individuals. It follows that when that time comes, notwithstanding that there is a wide margin of appreciation as to how such positive obligation is effective, the state will then have to take steps towards implementing that obligation. In this way the door has been left open to positive change.

Was there Discrimination in the Enjoyment of Human Rights?

As regards  the issue of whether there was unlawful discrimination in the enjoyment of human rights (Article 14 ECHR), on consideration of the correct comparator, the High Court’s comparator had been transsexuals who identify with the binary concept of gender  and who are  able to “declare and be issued with a passport in the gender in which they identify’. On appeal, the Appellant submitted that the proper comparator should be persons whose gender identity is congruent with their biological sex and trans persons whose gender identity is the opposite of their biological sex. All such persons can obtain a passport that accurately reflects their gender identity. The Court of Appeal concluded that that comparator advanced by the Appellant was more appropriate. However, nonetheless, it upheld the holding that any difference in treatment was objectively justified. Consequently, the policy of HMPO in relation the issue of an ‘X’ marked passport did not amount to unlawful discrimination contrary to Article 14 ECHR.