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

The claimant challenged the lawfulness of Her Majesty's Passport Office policy requiring passport applicants to declare either male or female and refusing to issue a passport with an "X" (unspecified) sex marker. The principal legal issues concerned the engagement and scope of Convention rights under Article 8 (right to respect for private life) and Article 14 (prohibition of discrimination), and whether the policy was irrational or based on irrelevant considerations.

The court accepted that gender identification, including a non-gendered identity, engages Article 8 and that a positive obligation might arise in principle. It applied the established Strasbourg factors (including margin of appreciation, the importance of the interest to the individual, and the existence or otherwise of an international consensus) to assess whether a positive obligation required the State to permit "X" passports.

The judge concluded that, on the evidence before the court, there was not yet a narrow, precise positive obligation to require HM Passport Office to permit "X" markers. The Government's concerns about administrative coherence across other areas of law, international standards (ICAO), border and identity security, and the need for a considered cross-government review were legitimate and within a relatively wide margin of appreciation. The policy was held to be proportionate, rational and based on relevant considerations; there was no breach of Article 8 or Article 14, and no irrationality or unlawful failure to take relevant matters into account.

This is a judicial-review challenge to HM Passport Office policy requiring passport applicants to select male or female and preventing issuance of a passport with an "X" (unspecified) sex/ gender marker. The claimant, who identifies as non-gendered, sought a declaration and relief enabling application for and issue of an "X" passport. Human Rights Watch intervened for the claimant. Permission was refused on paper but granted on renewal; the substantive hearing took place before Jeremy Baker J on 18-19 April 2018.

Background and parties:

• The claimant was born and registered female, underwent surgical procedures and identifies as non-gendered.
• HM Passport Office (successor to the Identity and Passport Service) maintains a policy of requiring a male or female designation on passports; ICAO standards allow M, F or X.
• The claimant argued the policy breached Articles 8 and 14 of the European Convention on Human Rights, was irrational, and improperly took into account irrelevant considerations.

Relief sought and issues framed:

• The claimant sought judicial review of HMPO policy and an order enabling a passport to be issued with an "X" marker.
• The court framed issues as: (i) whether Article 8 was engaged by a non-gendered identity; (ii) whether a positive obligation required the State to permit an "X" passport; (iii) whether any interference was justified and proportionate; (iv) whether there was unlawful discrimination under Article 14; and (v) whether the policy was irrational or based on irrelevant considerations.

Court's reasoning:

• The judge accepted that gender identification, including non-binary/non-gendered identity, falls within "private life" under Article 8.
• Applying Strasbourg authority (including Rees, Goodwin, Van Kück and Hamalainen), the court assessed positive obligations by striking a fair balance between individual and public interests and by taking into account the State's margin of appreciation. Factors included the importance of the interest to the claimant, absence of a clear international consensus, ongoing Government review and research (including a Government Equalities Office survey), and legitimate security and administrative-coherence concerns across government and legislation.
• The court found the Government's investigatory and review process was ongoing and that HMPO's policy was a proportionate interim measure. The evidence did not establish a present positive obligation to require the issue of "X" passports, and the claim under Article 14 likewise failed because any difference in treatment was objectively justifiable for the same reasons.
• Challenges on irrationality and failure to take relevant considerations into account were rejected: the court found the policy rational, proportionate and based on relevant considerations, and that HMPO had considered the issues raised.

Subsidiary findings and implications:

• The court noted ICAO standards permit an "X" marker but stressed cross-government implications and the desirability of a coherent approach across statute and administrative systems.
• The judge emphasised the dynamic nature of Convention jurisprudence and that the claimant may revisit relief depending on the outcome of the Government's comprehensive review.

This first-instance claim was dismissed. The court held that the claimant's non-gendered identity engages Article 8, but on the evidence there is no present positive obligation requiring the State (via HM Passport Office) to permit an "X" sex marker on passports. The Government's policy and ongoing cross-government review, together with legitimate security and administrative coherence concerns and the lack of a strong international consensus, meant the HMPO position was within the State's margin of appreciation, proportionate and rational. Consequently there was no breach of Articles 8 or 14, and no irrationality or failure to have regard to relevant considerations.

Permission for judicial review was refused on paper by Warby J and subsequently granted on renewal by Gilbart J on 12 October 2017. This judgment is the substantive first-instance decision of the Administrative Court (Queen's Bench Division).