Male and female-only categories on passports are ‘degrading’ and ‘illogical’ and people should be allowed to select an X option, the Supreme Court heard today in the latest round of a legal fight for gender-neutral passports.
Lawyers for non-gendered campaigner Christie Elan-Cane, 63, are asking the UK’s highest court in hearings today and tomorrow to declare that a ban on so-called X passports is a breach of human rights laws.
The Supreme Court was told that the Government’s current policy is ‘degrading’ because it requires non-gendered people to make a false declaration to get a passport, which ‘strikes at the foundation of the standards of honesty and integrity to be expected of such official processes’.
Kate Gallafent QC also said it was ‘illogical’ for part of the state to recognise and facilitate Elan-Cane’s identity while other parts did not. Elan-Cane underwent a double mastectomy and then an NHS-funded hysterectomy in the 1980s and 1990s.
Last year, the Court of Appeal ruled that current Government policy requiring British passports to have a male or female gender category did not breach Elan-Cane’s rights, supporting a High Court ruling in 2018.
But the judges did acknowledge that the European Convention on Human Rights guaranteed a right to respect for non-gendered identity – what Elan-Cane’s lawyers called ‘a milestone in LGBTQ+ civil rights litigation’.
Ms Gallafent QC said: ‘The appellant, whose gender identity engages Article 8, cannot cross a frontier, undergo an identity check or undertake the many transactions of everyday life without using a passport which misrepresents the appellant’s gender identity.’
She went on: ‘The state has assisted in the applicant no longer having any sex-specific characteristics. However, the illogicality is that the individual, the applicant, is not able to obtain the document that recognises that acquired identity.’
Ms Gallafent also argued there was a ‘fundamental incoherence’ in how the sex on a passport is changed for binary transgender people compared with other legal documents.
‘This is an incoherence that the Secretary of State is happy to live with,’ she said.
The Supreme Court later heard that the Home Office accepts that a person’s gender identity can be male, female, both or neither.
‘Despite the acknowledgement of this crucial fact, the policy continues to require those of the affected class who wish to obtain a passport to make a degrading, false declaration that their gender identity is either male or female and to bear and use a passport which makes that false and inappropriate declaration on its face,’ Ms Gallafent added in written arguments.
Sir James Eadie QC, for the Home Office, argued there was a need for an ‘administratively coherent system for the recognition of gender’.
In written arguments, he said: ‘It is obviously problematic, and highly undesirable, for one branch of Government, i.e. HMPO, to recognise non-binary identification when no other Government department does so.
‘It may lead to the same person being treated as having a different sex/gender by HMPO for the purposes of issuing a passport on the one hand, and by other Government departments for all other Governmental functions on the other.’
Sir James continued that amending the passport policy would be likely to require eligibility criteria for an ‘X’ passport to be raised.
‘If there are no such criteria, and access to an ‘X’ passport is a matter of free choice unconnected to gender identity, the justification for such a change is significantly less forceful,’ he said.
The Supreme Court later heard that the Government’s ongoing work about non-binary identity since the Court of Appeal’s hearing last year has been delayed by the pandemic.
‘The changes necessary to be considered are considerable, complex and controversial. It is a perfectly legitimate and proportionate position for a state to conclude that one specific step, such as ‘X’ markers, cannot and should not be viewed, or introduced, in isolation,’ Sir James concluded.
The hearing before five justices is expected to conclude tomorrow, with judgment reserved until a later date.