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The Supreme Court has handed down judgment in a significant appeal concerning the availability of non-gender specific “X” passports to non-gendered, non-binary, intersex and other trans persons who do not identify as, or exclusively as, male or female (the “Affected Class”).

Christie Elan-Cane, a non-gendered person, challenged the Government’s policy not to issue non-gender specific “X” passports to non-gendered, non-binary and other trans persons who do not identify as, or exclusively as, male or female.

The Supreme Court appeal concerned whether Article 8 ECHR, either taken in isolation or read together with Article 14, imposed an obligation on the UK as a Contracting State to the European Convention on Human Rights, when it issues UK passports, to afford respect to the private lives of individuals in the Affected Class by including a non-gender specific (“X”) marker for the passport-holder’s sex/gender, as an alternative to the markers M for male and F for female (M, F and X all being permitted designators, subject to national authorities deciding to afford them, under the relevant international standards for passports set by the International Civil Aviation Authority).

The Supreme Court dismissed the appeal.

Lord Reed (giving the judgment of the Court) noted that the Court of Appeal had found that Appellant’s identification as a non-gendered person fell within the scope of the right to respect for private life guaranteed by Article 8 ECHR and that this decision was not challenged before the Supreme Court (§§26, 30). However, his Lordship (giving the judgment of the Court) held:

1.There was no obligation to issue an “X” passport in circumstances where (i) the European Court of Human Rights had not considered the position of individuals who identified as non-gendered and any such finding would go well beyond the case law of the Court (§§30, 63); (ii) there was no consensus amongst Council of Europe States that passports should be available with an “X” marker (§59); and (iii) there were considerations relating to the public interest (including national security, costs and administrative coherence) which outweighed the Appellant’s interest in being issued with an “X” passport (§§46-54, 62).

2.There was no reason why the assessment at the European level should not be followed at the domestic level in the application of the Human Rights Act 1998, concluding that the statements in In re G (Adoption: Unmarried Couples) [2009] AC 173 that suggested otherwise were obiter or wrong and should be disapproved (§§108-110).  

The Secretary of State’s cross-appeal on the proper approach to reductions to allowable costs in circumstances where the Courts had made a costs capping order (or approved a mirror costs cap agreed by consent) in public interest proceedings was withdrawn shortly before the Supreme Court hearing, confirming the Court of Appeal’s decision on this point. A summary of the decision below is found here and the full judgment and press summary can be found on the Supreme Court website here

Kate Gallafent QC, Tom Mountford and Gayatri Sarathy acted pro bono for the Appellant, Christie Elan-Cane, instructed by Clifford Chance LLP.

Sir James Eadie QC acted for the Respondent, the Secretary of State for the Home Department, instructed by the Government Legal Department.

Monica Carss-Frisk QC and Rachel Jones acted pro bono for the Intervener, Human Rights Watch, instructed by Macfarlanes LLP.

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