The Queen (on the Application of Elan-Cane) v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Lloyd-Jones,Lady Arden,Lord Sales,Lord Reed,Lady Rose
Judgment Date15 December 2021
Neutral Citation[2021] UKSC 56
Year2021
CourtSupreme Court
R (on the application of Elan-Cane)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

[2021] UKSC 56

before

Lord Reed, President

Lord Lloyd-Jones

Lady Arden

Lord Sales

Lady Rose

Supreme Court

Michaelmas Term

On appeal from: [2020] EWCA Civ 363

Appellant

Kate Gallafent QC

Tom Mountford

Gayatri Sarathy

(Instructed by Clifford Chance LLP (London))

Respondent

Sir James Eadie QC

Sarah Hannett QC

(Instructed by The Government Legal Department)

Intervener (Human Rights Watch)

Monica Carss-Frisk QC

Rachel Jones

(Instructed by Macfarlanes LLP)

Heard on 12 and 13 July 2021

Lord Reed

( with whom Lord Lloyd-Jones, Lady Arden, Lord Sales and Lady Rose agree)

1

This appeal raises two questions:

(i) Does article 8 of the European Convention on Human Rights (“the Convention”), either taken in isolation or read together with article 14, impose 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 for the passport-holder's gender, as an alternative to the markers for male and female?

(ii) If not, is such an obligation nevertheless imposed on the Home Secretary by the Human Rights Act 1998?

For the reasons explained below, I answer both questions in the negative.

1. A preliminary note on language
2

The choice of language in the discussion of gender identification often signifies allegiance to a particular point of view. I should therefore explain that the language used in this judgment is intended to reflect the impartiality which is incumbent upon the court. Although the appellant is categorised for legal and administrative purposes as female, the present appeal involves a challenge to that categorisation, so far as it affects the application of a particular administrative policy. I shall not, therefore, use words which would normally follow from that categorisation. I will refer to the appellant as identifying as non-gendered, in the sense that that is how the appellant's gender is self-described. It will become apparent that the word “gender” is used in that context in a different sense from that in which it has been used by the Government and other public authorities, including Parliament. I will give a brief explanation of both usages which should suffice for present purposes.

2. The factual background
(1) The parties
3

The appellant was born female. However, growing up, and particularly during and after puberty, the appellant felt revulsion at having a female body. In 1989 the appellant underwent a bilateral mastectomy, and in 1990 a hysterectomy, in order to alleviate those feelings. The first of those procedures was carried out privately; the second, as publicly-funded treatment under the National Health Service. The appellant now identifies as non-gendered, and has become a campaigner for the legal and social recognition of a non-gendered category of individuals. The term “gender” is used in this context to describe an individual's feelings or choice of sexual identity, in distinction to the concept of “sex”, associated with the idea of biological differences which are generally binary and immutable. According to a witness statement provided by the appellant, “X” passports (that is to say, passports in which an individual's gender may be described not only as “M” or “F” but also as “X”) are a focal point of this campaign.

4

Her Majesty's Passport Office (“HMPO”) is an agency of the Home Office which deals with the issuing of passports and related matters. It is the sole issuer of United Kingdom passports to citizens of the United Kingdom. Passports are issued by HMPO at the discretion of the respondent, the Home Secretary, in the exercise of the Royal Prerogative. Under the law of the United Kingdom, the Royal Prerogative is a lawful basis for decision-making of this nature.

5

In 1995 the appellant contacted the United Kingdom Passport Authority, a predecessor of HMPO, to inquire whether it was possible for a passport to be issued without making a declaration of being male or female. The appellant was informed that this was not possible because a declaration of gender as either male or female was a mandatory requirement. In this context, as in others, public agencies generally use the terms “gender” and “sex” interchangeably, to refer to the biological categories of male and female, subject to the inclusion of transgender persons within the category of their acquired gender. The appellant accordingly applied for, and was issued with, a passport in which the relevant gender was recorded as female. The appellant made similar inquiries in 2005 and in correspondence between 2010 and 2016, with similar results.

(2) The policy
6

HMPO continues to operate a policy that an applicant for a passport must state on the application form whether their gender is male or female. If no gender is stated, the gender shown on the applicant's supporting documents is selected. The passport is issued recording the passport-holder's gender as male (“M”) or female (“F”). Transgender people, in the sense of people who have acquired a different gender from the one recorded at birth, can obtain passports showing their acquired gender.

7

It is important to make the latter point clear in order to avoid confusion. The term “transgender” can be used in a wider sense, as it is by the intervener, Human Rights Watch, so as to include persons in the position of the appellant. The term is used in this judgment in the narrower sense in which it has been used in the European case law and in most of the documentation to which I shall refer. So used, it describes those individuals who have acquired a gender, either male or female, which is different from the one recorded at birth. Such persons are not non-gendered. In the United Kingdom, they can obtain a passport which conforms to their acquired gender on the production of a gender recognition certificate, a re-registered birth certificate showing their acquired gender, or a doctor's letter confirming that their orientation to their acquired gender is likely to be permanent.

8

The appellant contends that the policy operated by HMPO contravenes the Convention rights of individuals who do not identify as either male or female.

(3) Reviews of the policy
9

In 2014 HMPO completed an internal review of gender marking in passports. The findings are set out in a document entitled “Gender Marking in Passports — Internal Review of Existing Arrangements and Possible Future Options”. It stated at para 1.4:

“There is no provision in the passport or on the passport application form for a person to transition from one gender to no gender or to state that they do not identify in either gender. This is in line with UK legislation that recognises only the genders Male and Female.”

It noted at para 1.6 that the record of a person's gender in their passport is used for a variety of purposes. One is to assist in verifying the identity of applicants for passports. The review explained that applicants for a passport must also provide documents which record their gender, such as a birth or adoption certificate or a gender recognition certificate. When the passport application is considered by HMPO, a check is made that the gender shown on the application form matches the gender shown on the documents supplied, in order to prevent fraud. Interviews are carried out in cases of doubt, with gender being one of the details investigated. Checks, including checks relating to gender, can also be carried out with other Government departments.

10

A second purpose is to assist in verifying the identity of passport users. Border staff check that the gender recorded on the passport appears to match the gender of the person using the passport. This is particularly valuable in the case of persons with names which may not be indicative of gender to a border officer who is unfamiliar with the traveller's language or culture. Other bodies which are required to check identity, such as banks carrying out their obligations under money laundering legislation, and employers carrying out their duties under immigration legislation, can also use passports for that purpose (passports, like driving licences and birth certificates, being one of the types of document used as evidence of identity in the United Kingdom when such evidence is required).

11

A third purpose is to enable officials to deal appropriately with members of the public in passport-related matters, for example by addressing them in appropriate terms, and by arranging for physical checks at borders to be carried out by officers of the appropriate gender, without their having to ask embarrassing questions about the passport-holder's gender.

12

The review acknowledged that two groups might be negatively affected by the current policy. One comprised individuals in the process of transitioning from one gender to the other (an issue which was subsequently resolved, as explained in paras 6 and 7 above). The other comprised individuals who did not consider themselves to be either male or female. There had however been very few requests for an “X” provision, other than from the appellant. There were no calls for change from gender representative groups or civil liberties groups (para 2.6).

13

The review noted that United Kingdom legislation, including discrimination and equality legislation, is based on the categorisation of all individuals as either male or female (and, if they are parents, as either mothers or fathers). There is no legislative provision for the recognition of individuals as non-gendered. There were no plans across government to introduce a third gender category (para 4.5). The norm across government was for gender to form a key part of the personal information gathered in respect of individuals. The review stated that ...

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