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

The Supreme Court considered whether article 8 of the European Convention on Human Rights, either alone or with article 14, imposed a positive obligation on the United Kingdom to issue passports bearing a non-gendered "X" marker for persons who identify as non-gendered, and whether the Human Rights Act 1998 required such a result domestically. The court held that article 8 did not impose such an obligation and that the Human Rights Act did not require a different outcome.

The decision applied the European Court of Human Rights' approach to positive obligations, including the need to strike a fair balance between individual interests and public interests and the relevance of the margin of appreciation. The court found there was no consensus among Council of Europe states on recognising a non-gendered category, and that legitimate public interests (including security, coherence of administrative and legal systems across government, and cost) justified the current passport policy.

The court also disapproved obiter dicta in Re G which suggested that domestic courts could depart from Strasbourg jurisprudence where the European court had left matters to the national margin of appreciation. The Supreme Court held that Convention rights given domestic effect by the Human Rights Act should, in principle, be interpreted consistently with Strasbourg jurisprudence, subject to narrow and established exceptions.

Background and parties: The appellant was born female, underwent medical treatment for gender dysphoria and identifies as non-gendered. The appellant challenged Her Majesty's Passport Office policy that passports record gender only as male or female and do not offer an "X" marker. HMPO issues passports under the Royal Prerogative and the Home Secretary was respondent. Human Rights Watch intervened.

Nature of the claim and procedure: The appellant sought judicial review on grounds that the passport policy breached article 8 (right to respect for private life), article 14 read with article 8 (discrimination), was irrational and failed to take proper account of relevant considerations. The claim was dismissed by the Administrative Court ([2018] EWHC 1530 (Admin)), and the Court of Appeal ([2020] EWCA Civ 363) dismissed the appeal. The matter proceeded to the Supreme Court.

Issues framed by the court:

• Whether article 8, alone or read with article 14, imposed an obligation to provide a non-gendered ("X") passport marker;
• Whether the Human Rights Act 1998 required the Home Secretary to issue such passports notwithstanding the European jurisprudence; and
• Whether dicta in Re G justified a departure from Strasbourg jurisprudence at the domestic level.

Court's reasoning: The court accepted that the appellant's identification as non-gendered engages article 8 as an aspect of private life but treated the relief sought as one concerned with a positive obligation to provide an "X" passport. In applying Strasbourg guidance (including the principles set out in Hämäläinen), the court weighed the individual interest against public interests and examined the margin of appreciation. The court found that:

• there is no Strasbourg authority establishing a positive obligation to recognise a non-gendered category or to issue genderless passports;
• the practical interest in an "X" passport in this case (limited frequency of passport use for identity in the United Kingdom, availability of alternative identity documents, and absence of comparable factual hardship) was not of the same weight as cases where Strasbourg has required legal recognition of gender change;
• significant public interests weighed against imposing an obligation: security considerations in identity and border control, administrative coherence across legislation and public services which assume a binary classification, and financial and operational costs;

On the Human Rights Act point, the court analysed and rejected the suggestion (derived from dicta in Re G) that domestic courts may treat Convention rights under the Act as having a different content from those under the Convention when Strasbourg has applied a margin of appreciation. The court held those dicta were obiter, founded on a misunderstanding of the margin of appreciation, and inconsistent with the statutory scheme and constitutional principles underpinning the Act.

Relief sought and outcome: The appellant sought a declaration and relief requiring provision of an "X" passport marker. The Supreme Court dismissed the appeal and declined to require the Home Secretary to issue passports with an "X" marker.

Appeal dismissed. The court held that article 8, alone or read with article 14, does not impose a positive obligation on the Secretary of State to issue passports with a non-gendered "X" marker; legitimate public interests (security, administrative coherence and cost) and the absence of a Council of Europe consensus mean a wide margin of appreciation applies. The Human Rights Act does not require a different outcome and the obiter dicta in Re G suggesting domestic courts may override Strasbourg's margin of appreciation approach were disapproved.

Administrative Court: claim dismissed [2018] EWHC 1530 (Admin); Court of Appeal: appeal dismissed [2020] EWCA Civ 363. Appeal to the Supreme Court from the Court of Appeal: [2021] UKSC 56.