R (on the application of Christie Elan-Cane) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jeremy Baker |
| Judgment Date | 22 June 2018 |
| Neutral Citation | [2018] EWHC 1530 (Admin) |
| Docket Number | Case No: CO/2704/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 June 2018 |
[2018] EWHC 1530 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jeremy Baker
Case No: CO/2704/2017
and
Miss Kate Gallafent QC and Mr Tom Mountford (instructed by Clifford Chance) for the Claimant
Sir James Eadie QC and Miss Sarah Hannett (instructed by Government Legal Department) for the Defendant
Ms Flora Robertson (instructed by MacFarlanes LLP) for the Intervener
Hearing dates: 18 and 19 April 2018
Introduction
This case concerns a challenge to the lawfulness of the current policy of Her Majesty's Passport Office to require those who apply for the issue of a passport to declare whether their gender is either male or female, and that a passport will only be issued bearing an “M” (male) or “F” (female) indicator in the sex field, rather than an “X”, indicating an unspecified sex.
Background
The claimant, who is 60 years of age, was born with female physical sexual characteristics and was therefore registered as female at birth. However, throughout childhood, the claimant grew increasingly detached from the gender which had been assigned at birth. This had a profound effect upon the claimant's emotional and psychological development, to the extent that the claimant decided to undergo 2 surgical procedures: the first in 1989, a bi-lateral mastectomy at the age of 31; the second in 1991, a total hysterectomy at the age of 33. The first of these procedures was paid for privately, whilst the second was undertaken by the National Health Service.
These procedures were successful in assisting the claimant to accept a “non-gendered” identity and, as the claimant stated in a 2 nd witness statement dated 25 May 2017, the claimant was therefore,
“6. ………… finally at peace with myself and with my body…………
7. …
8. My non-gendered body is innate and is a fundamental component of who I am. My non-gendered identity is a fact of my life and is not and never has been an alternative lifestyle choice. As I was able to accept that my identity was neither male nor female, I needed to find terminology that accurately expressed my identity as appropriate cultural references were not present. I self-defined respectively as ‘androgynous’, ‘third sex’ and ‘third gender’ until adopting ‘non-gendered’ as the most accurate and appropriate definition of my core identity.”
In 1995, and given the importance which the claimant attaches to being recognised as non-gendered, the claimant contacted the Government body responsible for issuing passports to enquire as to whether, as a non-gendered individual, it was possible for a passport to be issued without making a declaration of being either male or female. The claimant was informed that this was not possible, as a declaration of gender was a mandatory requirement. In those circumstances the claimant applied for, and was issued with, a passport with a declaration of being female.
In 2005, when consideration was being given by the Government to the introduction of a scheme of national identity cards, the claimant, being concerned that the same gender declaration would be required, approached Simon Hughes MP about the issue. As a result of research carried out on his behalf, the claimant learnt for the first time that the United Nations' body which was responsible for issuing specifications to member countries concerning international air travel, the International Civil Aviation Organisation (ICAO), permitted countries to issue passports with either “M”, “F” or “X” in the section of the mandatory machine-readable zone dealing with sex, and that whilst M and F indicated male and female, X indicated “unspecified”. However, when Simon Hughes enquired of the Government Department responsible for the issuing of passports about this matter, he received a similar response to that previously received by the claimant.
It was in the light of these matters that, as the claimant stated in the 2 nd witness statement,
“37. ‘X’ Passports became a key focal point of my campaign for the legal and social recognition of non-gendered identity. ‘X’ Passports were permitted in accordance with international accepted standards, ‘X’ Passports could be introduced without the need for complicated reworking of statutory legislation and I could envisage that the ‘X’ Passport was an achievable provision. The immediate benefit of an ‘X’ Passport was that the non-gendered passport holder, identifying as neither male nor female, would not be forced to present an identification document that was misrepresentative and furthermore that non-gendered people would not be put in the position where we are forced to deny our identities and make what we feel to be a false declaration as a consequence of a degrading and humiliating application process that forces non-gendered people to declare as either male or female.”
On 14 July 2010, the claimant wrote to the Chief Executive of the Identity and Passport Service (IPS), which was the executive agency responsible for issuing passports, raising the issue and requesting a reconsideration of their current policy. The claimant pointed out that both India and Malaysia permitted their citizens to apply for and be issued with a passport with an “X” for unspecified sex in accordance with the ICAO specifications, and stated that the claimant's own research and experience led the claimant to believe that,
“……there are potentially hundreds within the United Kingdom and many thousand worldwide in a similar position to the claimant.”
The IPS replied on 30 July 2010, stating that,
“I am sorry that you found the requirement to state your gender on the passport application form inappropriate and offensive. We recognise that not everyone identifies themselves as male or female as set out on the form. However, our current computer system does not allow for a passport to be issued if the gender field on the application form has not been completed.
Unfortunately, there is little we can do about this at present but we are prepared to listen to the issues and include them as part of any future review of the application form. There are a number of issues that we would have to consider, not least of all the security implications (issuing a passport without a gender) and the potential impact on the individual when travelling overseas if we decide to issue passports without the traditional gender identification. Any potential changes though would have to be discussed through the International Civil Aviation Organisation (ICAO) which sets international standards for travel documents. The current ICAO policy allows for passports to be issued with an ‘X’ instead of ‘M’ or ‘F’. However, we are not aware at this stage of any country that has adopted this approach.
You may wish to know that our current passport policy allows transgender people to apply for passports in their “acquired gender” on production of medical evidence. They do not require a Gender Recognition Certificate. Although the issue of a passport on the basis of medical evidence does not give legal recognition to a transgender person (this will have to be acquired through the Gender Recognition Panel), it at least allows them to travel in their preferred gender.”
A subsequent exchange of correspondence ensued between the parties, with the claimant pointing out in a letter dated 31 August 2010, that both New Zealand and Australia permit passports to be applied for and issued with an “X” for unspecified in accordance with the ICAO specifications. The claimant also referred to feeling apprehensive at border control points as the claimant's visual appearance did not match that of the sex designation on the passport.
This exchange of correspondence concluded with a letter from the IPS, dated 29 September 2010, which confirmed the current policy but stated that,
“We need to give careful consideration to amending the current requirements on the passport as we do not wish to cause additional difficulties for those travelling overseas. As gender impacts on groups of people in different ways we intend to work with the Government Equalities Office and the transgender community to consider how we can move this important issue forward.
We will also continue to work with the International Civil Aviation Organisation to discuss how the issue of gender recognition in passports and what the potential is for change. It is possible for a passport to be issued with an ‘X’ instead of an ‘M’ for male or ‘F’ for female. However, we anticipate that the use of an X may raise more questions than answers. We will be investigating other options including the removal of gender identifiers from passports but will need to consider any potential security implications of such a change.”
On 9 April 2013, the IPS wrote to Simon Hughes MP, in reply to a letter which he had sent concerning the removal of gender identification on identity records and other official records. The IPS stated that its policy of requiring an applicant for a passport to stipulate their gender, and for it to be shown on the passport, would continue. It acknowledged that a small number of countries allowed the prefix “X” to be used in their passports, but stated that,
“The use of ‘X’ is a matter of choice for those individual countries but we do not consider that currently there is either the ability or the benefits for the British Passport holder to require an ‘X’ in their passport.
UK law recognises only male and female gender. To apply an ‘X’ would require a change in domestic primary legislation. Consideration would have to be given to the impact on other areas of legislation such as sex...
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