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

Gender identity, including non-binary and non-gendered identity, falls within private life under Article 8. Engagement does not itself create a positive obligation to provide a particular form of legal recognition. The court must assess whether effective respect requires the requested measure, strike a fair balance, and decide domestically whether any justification is made out. A relatively wide margin may apply where there is no European consensus and the issue raises sensitive ethical questions. Administrative coherence across official records may be relevant where a requested passport change forms part of a wider recognition issue. The present policy was proportionate, although security arguments carried little weight because ICAO standards permit “X” markers. A costs cap does not prevent a court reducing the capped sum where the circumstances justify a proportionate costs order.

The appellant is a non-gendered person who challenged HM Passport Office’s continuing policy requiring passport applicants to identify as male or female and refusing an “X” marker for unspecified gender. The appellant relied principally on Articles 8 and 14 and also advanced public-law grounds.

Jeremy Baker J dismissed the judicial review claim in [2018] EWHC 1530 (Admin), holding that Article 8 was engaged but that the policy was not unlawful. The appellant appealed. The Secretary of State cross-appealed on Article 8 engagement and the costs order. The central issue was whether the state had a positive and specific obligation to provide an “X” passport marker.

Lady Justice King gave the leading judgment. Irwin LJ and Henderson LJ agreed. The appeal and the Secretary of State’s cross-appeals were dismissed.

1. Article 8 engagement. Gender identity, including non-binary and non-gendered identity, is central to private life and engages Article 8. The absence of an earlier Strasbourg decision specifically concerning non-gendered identity did not prevent the domestic court from addressing the issue consistently with Strasbourg jurisprudence.
2. Positive obligation and fair balance. Engagement of Article 8 had to be distinguished from the existence and implementation of a positive obligation. The relevant assessment required consideration of the individual’s interest, the coherence of the state’s administrative and legal systems, and the position in other Council of Europe states. The court also had to consider the fair balance between individual and community interests.
3. Margin and present policy. There was no European consensus on either recognition of non-binary people generally or “X” markers on passports. The issue involved sensitive ethical and moral questions. The Government therefore retained a relatively wide margin. The passport issue could not reasonably be isolated from wider questions about gender information on official records, eligibility, proof and the purpose of gender markers. The ongoing governmental review was a legitimate consideration, and the existing policy was proportionate.
4. Security and Article 14. Security arguments added little because ICAO standards had long permitted “X” markers and no specific security problem had been shown. The more appropriate Article 14 comparator was accepted, but the discrimination complaint was materially the same as the Article 8 complaint and produced the same result.
5. Costs. Under sections 88 and 89(2) of the Criminal Justice and Courts Act 2015, the public-interest costs-capping regime informed the whole costs discretion. The judge was entitled to apply the 33% reduction to the agreed £3,000 cap, rather than first calculating the reduction against uncapped costs. The High Court’s order requiring payment of £2,000 therefore stood.

The court observed that continued European momentum might eventually exhaust the margin of appreciation and require recognition of non-binary identities, but that stage had not yet been reached.

• Court of Appeal (Civil Division): dismissed the appellant’s appeal and the Secretary of State’s cross-appeals, including the costs challenge, under [2020] EWCA Civ 363.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Baker J dismissed the judicial review claim, holding that Article 8 was engaged but that the passport policy was lawful, under [2018] EWHC 1530 (Admin).