Elan-Cane, R (on the application of) v Secretary of State for the Home Department & Anor

Factual and Procedural Background

This case concerns a challenge to the lawfulness of the policy of Her Majesty's Passport Office (HMPO) requiring passport applicants to declare their gender as either male or female, and issuing passports only with an "M" or "F" gender marker, rather than an "X" indicating unspecified sex. The claimant, a 60-year-old individual born with female physical characteristics but identifying as non-gendered, underwent surgical procedures to affirm this identity and sought recognition through an "X" gender marker on their passport.

The claimant made multiple attempts since 1995 to obtain a passport reflecting a non-gendered identity, corresponding with government agencies and MPs, but was informed that the current policy did not permit this. The claimant commissioned a legal report arguing that HMPO's refusal to issue "X" passports was unlawful under the Human Rights Act 1998, the Gender Recognition Act 2004, and the Equality Act 2010.

HMPO conducted an internal review in 2014 and maintained the policy, citing security concerns, administrative coherence, and the absence of legislative recognition for a third gender in UK law. The claimant initiated judicial review proceedings challenging the policy as a breach of Article 8 (right to private life) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR), as well as asserting irrationality and failure to consider relevant factors.

Permission for judicial review was initially refused but later granted on renewal. Human Rights Watch was permitted to intervene in support of the claimant. Evidence was submitted by both parties, including witness statements and third-party expert evidence on gender identity issues, international standards, and practices regarding gender markers on passports.

Legal Issues Presented

1. Whether HMPO's policy requiring passport applicants to declare gender as male or female and refusing to issue passports with an "X" gender marker unlawfully interferes with the claimant's Article 8 right to respect for private life.
2. Whether the policy constitutes unlawful discrimination contrary to Article 14 of the ECHR.
3. Whether the policy is irrational or based on a failure to take into account relevant considerations or the taking into account of irrelevant considerations.
4. The scope and existence of any positive obligation on the UK Government to recognise non-gendered identities in official documentation, particularly passports.
5. The extent to which the Government's margin of appreciation applies to this issue.

Arguments of the Parties

Claimant's Arguments

• The claimant's non-gendered identity is a fundamental aspect of private life protected under Article 8.
• The Government has a positive obligation to respect and recognise the claimant's non-gendered identity, including through passport issuance.
• HMPO's policy forces the claimant to make a false declaration of gender, causing distress and breaching Article 8.
• The policy discriminates unlawfully against non-gendered individuals under Article 14 compared to those who identify as male or female.
• The policy is irrational, failing to consider relevant factors such as international acceptance of "X" passports and the claimant's rights, while relying on mistaken beliefs about legislative requirements and security risks.
• Issuing passports with an "X" marker would not require legislative change as passports are issued under Royal Prerogative and ICAO standards already permit such markers.
• The claimant does not seek recognition of a third gender but the option to have an unspecified gender marker, which is distinct.

Defendant's Arguments

• The UK is entitled to a wide margin of appreciation in matters of gender recognition and is under no positive obligation to recognise genders other than male or female.
• The current HMPO policy does not unlawfully interfere with the claimant's Article 8 rights as any interference is justified by legitimate aims including maintaining administrative coherence, border security, and combatting identity fraud.
• Recognition of a third gender or "X" marker on passports involves complex legislative and policy implications across multiple areas of law and government functions.
• There is no European or international consensus requiring recognition of non-binary or non-gendered identities in passports.
• The policy is rational and proportionate given the small number of affected individuals, the costs and administrative difficulties of change, and the need for consistency across government.
• Article 14 is not breached as the claimant's non-gendered identity is not a protected status and any difference in treatment is objectively justified.
• HMPO has taken relevant factors into account and no error of law or irrationality has occurred.

Claimant's Response to Defendant

• The claim is limited to challenging the refusal to allow an "X" marker on passports and does not seek broader recognition of a third gender, thus wider legislative concerns are not relevant.
• ICAO standards already permit "X" markers and no further surveys or studies are necessary to permit their introduction.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the claimant's Article 8 rights, confirming that gender identity, including non-gendered identity, falls within the scope of private life. The claimant's identification as non-gendered is therefore protected under Article 8. However, the court found that the positive obligation on the state to respect this identity does not presently extend to requiring the issuance of passports with an "X" gender marker.

The court recognised the claimant's strong personal interest in legal recognition but noted that the challenge was limited to HMPO's policy on passport gender markers, not broader legal recognition of a third gender. The court accepted that passports are issued under the Royal Prerogative without legislative prescription of gender fields, and ICAO standards permit "X" markers, but HMPO's policy aligns with current UK law recognising only male and female genders.

The court acknowledged the Government's legitimate aims in maintaining administrative coherence across government departments and legislation, and the importance of gender markers for security, identity verification, and border control. The court accepted that biometric identification is not yet universal and that gender remains a relevant biographic identifier.

There was no consensus or strong international trend sufficient to narrow the Government's wide margin of appreciation. The Government's ongoing research and review of non-binary identities and passport policies were noted as appropriate and responsible steps.

Regarding Article 14, the court found no unlawful discrimination because the claimant's non-gendered status is not a protected status under current law, and any difference in treatment is objectively justified by legitimate aims.

The court rejected the claimant's irrationality claim, finding HMPO's policy rational and based on relevant considerations, with no evidence of failure to consider material factors or reliance on irrelevant factors.

Holding and Implications

The court's final decision is DISMISSED, upholding HMPO's current policy requiring passport applicants to declare gender as male or female and refusing to issue passports with an "X" gender marker.

The decision means that the claimant will not obtain a passport reflecting a non-gendered identity at this time. The court emphasised that this conclusion is based on current evidence and circumstances, including the absence of a legislative framework for non-binary gender recognition and the Government's ongoing review process.

No new precedent was established, and the court recognized that future developments in legislation, government policy, or international consensus could alter the legal landscape. The claimant and others identifying outside the binary may revisit these issues following the Government's forthcoming comprehensive review of non-binary recognition and related policies.