UK government faces judicial review over refusal to allow gender-neutral passports

The High Court will hold a full judicial review over the UK government’s refusal to allow ‘Gender X’ passports, after a challenge from a non-gendered campaigner.

A number of countries have created systems which allow their passports to recognise people who are not male or female as a separate ‘Gender X’ category, with New Zealand and Australia among those to make provision for Gender X alongside M and F.

However, despite political pressure on the issue from LGBT campaigners, the UK government has resisted any move to adopt the standard itself.

The current system forces people to declare that they are either male or female, which campaigners say “fails to acknowledge their identities or their existence”, but the Home Office has rebuffed calls for change.

British Prime Minister Theresa May and Home Secretary Amber Rudd (Photo by Matt Dunham – WPA Pool/Getty Images)

Non-gendered campaigner Christie Elan-Cane, who does not identify as male or female, took the issue to the High Court, and today the court agreed to a judicial review of the issue.

The review will challenge the policy of Her Majesty’s Passport Office (HMPO), considering whether it should allow a non-gender specific alternative (‘X’, for unspecified gender) passport to be issued as permitted by the relevant international standards and other countries worldwide.

The Court’s decision means that the case will now proceed to a substantive hearing, during which the Court will hear argument that the policy of HMPO is unlawful on the basis that it constitutes a breach of the right to private life under the European Convention on Human Rights, that it is discriminatory and that it is irrational and therefore unlawful as a matter of administrative law.

Narind Singh, partner leading the Clifford Chance team, said: “We are delighted that the Court has granted permission for a full hearing of this significant public interest case on the fundamentally important issue of the right to respect for individuals’ identity, and look forward to working with Christie Elan-Cane as we proceed to a substantive hearing.

“Access to justice is central to Clifford Chance’s responsible business strategy, and the firm is proud to have worked alongside Christie’s Non-Gendered campaign for many years as it strives to attain recognition for individuals who do not identify as either male or female, including members of the trans community, intersex people and those who identify as non-gendered.

“Gender identity is a fundamental part of an individual’s intimate, personal identity and X-passports are a crucial step in the protection of the human rights of this group of individuals, who otherwise face an unacceptable choice between forgoing a passport, and making a false declaration, and using a passport which misrepresents their identity.”

Christie Elan Cane

Christie Elan-Cane said: “Legitimate identity is a fundamental human right but non-gendered people are often treated as though we have no rights.

“The UK’s passport application process requires applicants to declare whether they are male or female. It is inappropriate and wrong that someone who defines as neither should be forced to make that declaration.’”

A statement added: “Christie has engaged with politicians and various government departments over a number of years to raise awareness of the issue.

“When the political process had been exhausted and had failed, Christie approached Clifford Chance and subsequently instigated legal proceedings against the UK Government.

“Christie is not seeking special treatment however does seek to be treated fairly.

“A change of Government policy is urgently needed to address the social invisibility of people in a similar position to Christie who are effectively excluded from full participation within a streamlined gendered society.

There has been substantial political backing for a change.

British passport

The Green Party and Liberal Democats both expressly gave backing for Gender X passports in their 2017 election manifestos.

The Lib Dems said: “We will introduce an ‘X’ option on passports, identity documents, and official forms for those who do not wish to identify as either male or female, and campaign for their introduction in the provision of other services, for example utilities.”

The Green Party said: “We would campaign for an X gender marker to be added to passports for non-binary and intersex people who wish to use it.”

Labour did not make a firm manifesto commitment, but in a Q&A with PinkNews, Labour leader Jeremy Corbyn said: “People must be able to identify as they see themselves, without having binaries imposed upon them.

“People’s own self-identification must be respected by others. That’s why I’m pleased we committed in our manifesto that Labour in government will update legal protections for the trans community by rewriting the Equality Act and other laws to specifically protect gender identity.

“This will of course inform the mechanisms of government forms and documents to make them as gender neutral as possible.”

However, Prime Minister Theresa May would not be drawn on the issue in her PinkNews Q&A.

She said: “As part of our Transgender Action Plan we are conducting a review of gender requirements on government forms and paperwork, because I know this is a concern for trans people and those with different gender identities.

“Legally recognising a new third category is a broader issue than just changing passports, and that needs to be properly considered across government before we propose any changes.”