Leading judges delivered their ruling in the latest round of a legal battle over “X”(for unspecified) passports.
The challenge was brought by Christie Elan-Cane, a campaigner who has fought for legal and social recognition for non-gendered identity for over 25 years, and who believes the UK’s passport application process, which requires individuals to indicate whether they are male or female, is “inherently discriminatory”.
In a statement after the judgment was handed down, Elan-Cane said the decision was “devastating”.
“It is bad news for everyone who cannot obtain a passport without the requirement imposed by the UK Government that they should collude in their own social invisibility,” the campaigner said.
At a hearing in December, three senior judges were told that 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.
The appeal, contested by the Home Office, centred 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.
