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

An individual’s non-gendered identity falls within the concept of gender identification protected by Article 8. However, Article 8 does not presently require the United Kingdom to issue passports containing an “X” marker. The existence and scope of any positive obligation must be assessed by striking a fair balance between the individual’s interests and those of the community. Relevant considerations include the importance of the interest, international consensus, the breadth of the proposed obligation, administrative coherence and security. In the absence of sufficient consensus or a sufficiently strong international trend, the Government retained a relatively wide margin of appreciation. The continuing policy was proportionate and rational, and did not unlawfully discriminate under Article 14.

The claimant, who identifies as non-gendered, challenged HM Passport Office’s policy requiring passport applicants to declare their gender as male or female and refusing to issue passports bearing “X” for unspecified sex. The claim alleged breaches of Articles 8 and 14 of the European Convention on Human Rights, irrationality and failure to take relevant considerations into account.

The policy was maintained under the Royal Prerogative. The claimant argued that an “X” marker was permitted by International Civil Aviation Organisation standards and would not require wider legal reform. The Secretary of State relied on security, administrative coherence, the absence of international consensus and the need for a comprehensive governmental review.

1. Article 8. The claimant’s non-gendered identity was a form of gender identification and therefore fell within the scope of private life protected by Article 8. The broad description of private life in Van Kück v Germany [2003] 37 EHRR 973 was not confined to binary transgender identities.
2. The existence and scope of any positive obligation had to be assessed together by reference principally to the fair balance between the individual’s interests and those of the community. The Government’s margin of appreciation was relevant, although its breadth depended on the importance of the interest, the existence of consensus, the sensitivity of the issue and the extent of the burden imposed.
3. The claimant had a strong personal interest in full legal recognition as non-gendered. However, the proceedings challenged only the passport policy. Passports were not equivalent to birth certificates, and the evidence did not establish that the policy required a false declaration in every case. Gender also remained an additional biographical and security identifier.
4. The Government was entitled to consider passport policy as part of a wider review of gender recognition across government and legislation. There was no sufficient European or international consensus, nor a sufficiently strong international trend, requiring the margin of appreciation to be significantly reduced. The current policy was therefore a proportionate means of maintaining coherent policy pending review and did not breach Article 8.
5. Any difference in treatment under Article 14 was objectively justified for the same reasons. The policy was rational. The authorities were entitled to rely on evidence concerning security, administrative coherence and wider governmental implications. The challenge based on relevant and irrelevant considerations therefore failed.
6. The claim was dismissed. The court emphasised that the conclusion depended on the evidence and circumstances then existing. The Government’s review was required to proceed without undue delay and to address the distinction between sex and gender, the justification for recording them, recognition outside the binary, and the relevant legislative framework.

The judgment was a first-instance judicial review decision. Permission was initially refused on paper but granted on renewal by Gilbart J on 12 October 2017. Human Rights Watch intervened by consent.