R v Secretary of State for the Home Department

Article 8 of the European Convention on Human Rights, alone or with article 14, does not presently require a state to offer an “X” gender marker in passports. Whether a positive obligation exists depends on a fair balance between the individual and community interests, informed by the importance of the interest, domestic legal and administrative coherence, the burden on the state and the applicable margin of appreciation.

Domestic courts may develop Convention law where Strasbourg principles clearly support the development. They should not recognise a Convention right beyond the limits to which they can be confident the European Court of Human Rights would go. The domestic rights enacted by the Human Rights Act 1998 have the same content as the corresponding international Convention rights.

The appellant identified as non-gendered and challenged the policy of Her Majesty’s Passport Office requiring every United Kingdom passport to record the holder’s gender as male or female. The appellant sought an passport bearing an “X” marker.

The Administrative Court dismissed the judicial review claim in [2018] EWHC 1530 (Admin). The Court of Appeal upheld that decision in [2020] EWCA Civ 363. Both courts concluded that article 8 did not impose the claimed positive obligation, and that the associated article 14 complaint also failed.

The Supreme Court considered whether article 8, alone or with article 14, required the Home Secretary to issue passports with an “X” marker. It also considered whether the Human Rights Act 1998 could impose such an obligation even if the Convention did not.

1. Appeal dismissed unanimously. Lord Reed delivered the judgment, with which Lord Lloyd-Jones, Lady Arden, Lord Sales and Lady Rose agreed.

2. The appellant’s identification as non-gendered formed part of private life under article 8. The issue was whether article 8 imposed a positive obligation to provide an “X” passport. Positive and negative obligations are governed by similar principles. The court must strike a fair balance between the individual and community interests, taking account of the importance of the interest, domestic coherence, the burden on the state and the margin of appreciation.

3. The relevant individual interest was confined to the gender designation in a passport. The policy did not require applicants to misstate their personal feelings: the application recorded gender as a legal and biographical identifier checked against official records. The prejudice was materially less serious than the daily discordance considered in B v France and Goodwin v United Kingdom.

4. The competing public interests carried substantial weight. Gender markers assisted identity and security checks. The Court of Appeal had insufficiently respected the executive’s institutional and constitutional competence concerning national security. Cost was relevant but not conclusive. Most importantly, recognising a non-gendered category in passports alone would conflict with the binary approach embedded throughout United Kingdom legislation and public administration.

5. A wide margin of appreciation applied. There was no consensus among Council of Europe states about “X” passports, eligibility or procedure. The subject raised complex and sensitive moral, ethical and social-policy questions. The public interests therefore outweighed the appellant’s interest, and article 8 imposed no positive obligation to issue an “X” passport.

6. The article 14 complaint was the same essential complaint viewed through discrimination law. Maintaining a coherent approach to gender across law and administration was legitimate, and the difference in treatment was justified within the wide margin of appreciation.

7. The domestic Convention rights created by the Human Rights Act 1998 have the same content as the corresponding international rights. Domestic courts may extend protection to new situations where established Strasbourg principles support that step, but should not exceed the point to which they can be confident Strasbourg would go.

8. The contrary dicta in In re G (Adoption: Unmarried Couples) [2008] UKHL 38 were obiter and were disapproved. They misunderstood the margin of appreciation, conflicted with the structure and purpose of the Act, threatened parliamentary sovereignty and legal certainty, and were inconsistent with the prevailing authorities. The Convention imposed no obligation to issue an “X” passport, and the Act supplied no independent basis for one.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously. The court affirmed that neither the Convention nor the Human Rights Act 1998 required the Home Secretary to provide an “X” passport: [2021] UKSC 56.
2. Court of Appeal: The court dismissed the appeal and upheld the refusal of judicial review, although it differed from the Administrative Court on aspects of the article 14 analysis: [2020] EWCA Civ 363; [2020] QB 929.
3. Administrative Court: Jeremy Baker J dismissed the judicial review claim, holding that articles 8 and 14 did not require an “X” passport: [2018] EWHC 1530 (Admin); [2018] 1 WLR 5119.