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Landmark Court ruling says British citizens cannot be gender neutral on their passports

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A landmark court ruling has said that people cannot have passports with their gender unspecified.

The news comes after the campaigner Christie Elan-Cane brought a challenge to the Court of Appeal arguing that passports with ‘X’ instead of gender should be available.

Elan-Cane’s legal team claimed the UK’s passport application process, which requires individuals to indicate whether they are male or female, is ‘inherently discriminatory’.

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At a hearing in December, three senior judges were told by the legal team 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.

Christie Elan-Cane

The appeal, which was contested by the Home Office, centres on the lawfulness of the current policy administered by Her Majesty’s Passport Office (HMPO), a branch of the Home Office.

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.”

Lady Justice Eleanor King

However, Lady Justice Eleanor King read out a ruling at the Court of Appeal today saying: “There can be little more central to a citizen’s private life than gender.

“In this case, however, the passport issue cannot reasonably be considered in isolation, given that the driver for change is the notion of respect for gender identity across the board.

 “The court finds that there was no positive obligation on the state to provide an ‘X’ marker in order to ensure the right of the Appellant to respect for private life.

 “Therefore, the current policy of HMPO does not amount to an unlawful breach of the Appellant’s Article 8 private life rights.

“The court accepts that the issue goes to gender identity and is an issue central to a person’s Article 8 private life.

“The Judge, however, was right in deciding that the state had a ‘relatively wide’ margin of appreciation when striking the balance between private and public interests, or Convention rights, notwithstanding that an issue of an individual’s identity is at stake.

 “The court finds that the ‘X’ marker is just one part of a bigger picture that requires a coherent structured approach across all the areas where the issue of non-binary gender arises, particularly given the discussions as to whether there should be any gender boxes on passports (or indeed other official documents) at all.

“There is not yet any consensus across Council of Europe states in relation to either the broad issue of the recognition of non-binary people, or the narrow issue of the use of X markers on passports, although there is momentum within Europe in relation to how the status of non-binary people is to be recognised and the time may come when the fair balance has shifted.

“In relation to the alleged discrimination under Articles 8 and 14, the court found that the question of whether the difference in treatment was objectively justified would result in the same answer as that in relation to Article 8 private life, and that the current policy in relation to the issuing of X marked passports does not, therefore, amount to unlawful discrimination under Article 14.”

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