Human rights: Gendered passports survive challenge

In R (on the application of Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56 (15 December 2021), the appellant argued that the policy operated by the UK Government in respect of passport applications contravenes articles 8 and 14 of the European Convention on Human Rights. The appellant contended that a passport application should include a non-gendered (“X”) marker as an alternative to the male (“M”) and female (“F”) markers.

Background

The appellant was born female, but subsequently underwent several operations to achieve the status of “non-gendered”. The appellant had campaigned for recognition of a non-gendered category of individuals. A key part of this campaign had been for the inclusion of “X” passports.

In 1995, the appellant contacted the United Kingdom Passport Authority (“UKPA”) to ascertain whether it was possible for a passport to be issued without the binary declaration of being male or female. UKPA stated that a declaration of gender was mandatory. The appellant continued to engage with UKPA, and latterly HM Passport Office (“HMPO”), up until 2016 but received the same response.

In June 2017, the appellant sought judicial review of HMPO’s passport policy in the High Court. The appellant claimed that the policy, inter alia: (1) breached the appellant’s right to private life under article 8; and (2) breached the appellant’s right not to be discriminated against on the basis of sex or gender under article 14 taken together with article 8. The High Court and Court of Appeal dismissed the proceedings. Both courts recognised that HMPO’s policy did engage the appellant’s article 8 rights, but held that there was no unlawful breach. The issue of whether and how to recognise non-binary genders was within the state’s margin of appreciation, and there was no violation of the appellant’s article 14 rights.

On the appellant’s further appeal, the Supreme Court required to determine:

1. Whether article 8 of the Convention, taken in isolation or read with article 14, imposes an obligation on a contracting state, when it issues passports, to respect the private lives of individuals who identify as non-gendered, by including a non-gendered (“X”) marker?
2. If not, is such an obligation nevertheless imposed on the Home Secretary by the Human Rights Act 1998 (“HRA”)?

Decision

The Supreme Court unanimously dismissed the appeal.

The court identified that there was no preceding judgment of the European Court of Human Rights (“ECtHR”) which established an obligation on a contracting party to recognise a gender category other than male or female. Given ECtHR case law concerning transgender individuals, however, it was recognised that the appellant’s identification as non-gendered was an aspect of private life within article 8 (para 30).

By applying established principles of ECtHR jurisprudence, the Supreme Court determined that there had been no violation of the appellant’s Convention rights. The court identified that the matter in dispute was limited solely to HMPO’s policy on issuing passports.

Considering the degree of prejudice to the appellant, the court recognised that the width of the margin of appreciation varies depending on the circumstances (para 56). Two important factors were (1) whether a particularly important facet of an individual’s existence or identity was at stake, and (2) whether there was a consensus within the Council of Europe member states.

The court determined that any prejudice would be limited to the appellant’s passport. This was not considered a particularly important facet. The court identified there was no consensus on the issue among the member states (para 59).

The appellant’s alternative argument based on the HRA was rejected. The appellant relied on comments made in In re G (Adoption: Unmarried Couples) [2008] UKHL 38. The question posed in that case was whether an act that does not result in a violation of the Convention can nevertheless be incompatible with Convention rights, within the meaning of the HRA. Following a review of domestic jurisprudence and parliamentary intention when drafting the HRA, the Supreme Court disapproved the dicta in Re G (para 108).

Commentary

This judgment is of significance not only to human rights lawyers but to practitioners involved in public law. It highlights the consequences were the separation of powers in the United Kingdom not adhered to.

The decision reiterates that article 8 is a qualified right and subject to the limitations set out in article 8(2). When assessing a state’s obligations, regard must be had to the fair balance between the competing interests of an individual and the community as a whole. The court recognised that where there was no consensus among the Council of Europe member states, the margin of appreciation afforded to states would be wider.

It emphasised that were the HRA interpreted as giving the judiciary the right to find breaches of Convention rights in instances where the ECtHR would hold domestic legislation in conformity to the ECHR, it would result in a substantial expansion of the power of the judiciary at the expense of Parliament.