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Legal Corner: Lack of gender-neutral passports is not unlawful

24th Mar 2020
Legal Corner: Lack of gender-neutral passports is not unlawful

The Court of Appeal this month considered an appeal by Christie Elan-Caine [the appellant], a non-gendered activist who had challenged the UK passport office’s decision to require an applicant to define themselves as either male or female. The appellant wanted the form to include an additional option of ‘X’ for those who did not identify as either gender.

The appellant was registered as female at birth but grew detached from the female gender such that in their 30’s, the appellant underwent various surgical procedures including a bilateral mastectomy and a hysterectomy.

For the Appellant, these procedures achieved the desired status of ‘non-gendering.’ However, when applying for a passport, the appellant was required to either identify as male or female, a position which the appellant described as being ‘inherently discriminatory.’

The Appellant, therefore, issued a Judicial Review claim, challenging the decision of the Passport Office on the basis that it was an infringement of their Article 8 right to respect for private life.

Reliance was placed upon the fact that the International Civil Aviation Organisation, the United Nations body responsible for issuing specifications to member countries concerning air travel, permitted countries to issue passports with three options under gender, being ‘M’, ‘F’ or ‘X.’ Some 11 countries have now issue passports with a non-gender specific option, including Australia, Canada, Denmark, India, Pakistan and the Netherlands.

The Passport Office argued that there was no positive obligation on the state to provide legal recognition of the many different ways in which individuals may define themselves, and in particular no obligation legally to recognise a non-gendered identity. In addition, they argued that there was no European or international consensus in relation to the issue of a ‘third gender.’

Any decision in relation to passports could not be taken in a vacuum; it needed to be part of a coordinated approach across Government with regard to non-binary gender identity to ensure that there was alignment and consistency.

The Judicial Review claim failed in the High Court, and therefore the Appellant appealed to the Court of Appeal. The first question they considered was whether the issue in dispute did, in fact, engage the Appellant’s Article 8 right to respect for private life. The Court of Appeal held that it clearly did, stating:

“…it is obvious and indeed beyond argument that the facts of this case concern the Appellant’s private life and engage Article 8. 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.”
However, the fact that the right had been engaged did not mean that the refusal of the Passport Office to permit a third gender option breached such a right.

The Court of Appeal considered that the argument about having coherency in Government policy was an important one; making a change to the passport application form could not be considered in isolation from the wider questions about the need to ask for gender information at all if there was an option not to identify as male or female.

Further, there would be a need to consider who could make use of the ‘X’ box, and if it was only those who identified as non-binary, what evidence they might be required to provide. In addition, the issue of gender identity was an evolving area; whilst the direction of travel or “trend”, was moving towards the recognition of the status of nonbinary people, there was not at this moment in time consensus in relation to their recognition or the use of ‘X’ markers on passports.

Therefore, the Court of Appeal considered that the current passport policy did not ‘at present’ amount to an unlawful breach of the Appellant’s Article 8 private life rights. However, they also noted that if and when there was consensus as to the position of non-binary, including intersex, individuals, the State would then have to take steps towards implementing that obligation.

The Appellant has sought leave to appeal to the Supreme Court, and it remains to be seen whether they will agree to hear an appeal or not. However, this case provides an interesting perspective on the way that the evolving gender debate impacts on so many practical and procedural matters. The Government is due to consider this issue further, and it is, therefore, a matter that will no doubt generate further discussion.

Safia Tharoo
Barrister, 40 Bedford Row, London

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Over 120 people attended a landmark conference on the media reporting of Islam and Muslims. It was held jointly by The Muslim News and Society of Editors in London on September 15.

The Muslim News Awards for Excellence 2015 was held on March in London to acknowledge British Muslim and non-Muslim contributions to the society.

The Muslim News Awards for Excellence 2015 was held on March in London to acknowledge British Muslim and non-Muslim contributions to the society.

The Muslim News Awards for Excellence event is to acknowledge British Muslim and non-Muslim contributions to society. Over 850 people from diverse background, Muslim and non-Muslim, attended the gala dinner.

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