Regulation & Government

Supreme Court rejects gender-neutral passport challenge

The judgement follows judicial review proceedings that were brought by Clifford Chance on behalf of Christie Elan-Cane, which challenged the legality of the UK Government's current passport policy

The Supreme Court has handed down a judgement that rules the UK Government does not have a positive obligation to provide non gender-specific “X” passports.

Its judgement follows judicial review proceedings that were brought by Clifford Chance on behalf of Christie Elan-Cane, which challenged the legality of the UK Government’s passport policy.

The current policy requires that either a “M” or “F” gender marker appear on every UK passport.

However, Elan-Cane does not identify as either male or female, but identifies as non-gendered. According to Clifford Chance, the lack of a non gender-specific passport option impacts on their ability to obtain and use a passport on equal terms with those who identify as exclusively male or female. 

The case called for the UK to follow in the footsteps of the increasing number of countries which allow the option of “X”, unspecified, gender markings in passports, including the US, Australia, Germany and India.

Deon Fang, associate at Clifford Chance, said: “This is a disappointing result, particularly for the thousands of people across the UK who do not identify exclusively as male or female. Clifford Chance is proud to be working with Christie and Blackstone Chambers on this important case, which has been a milestone in LGBTQ+ civil rights litigation. 

“This case marked the first time the UK courts have recognised that the right to respect for private life under Article 8 of the European Convention of Human Rights includes respect for the fundamental identity of non-gendered, intersex, trans and non-binary people. We continue to support Christie and per campaign as we consider our options.”

Narind Singh, partner, added: “This judgement undoubtedly has a serious impact on the lives of Christie and a large number of other affected individuals who are still denied the right to obtain a passport that reflects their gender identity. 

“Clifford Chance is committed to justice for marginalised sections of society, including the non-gendered community. We will continue working with Christie to address the inadequacy and unfairness of the current passport policy.”

In their decisions on “X” passports, the courts have reportedly given weight to the UK Government’s stated objective of providing a “coherent system of gender recognition across all government areas and legislation”. 

Clifford Chance said: “In considering whether to exercise its executive function to allow “X” passports, and in making other decisions affecting Christie, and the wider affected class, the Government must properly take into account those individuals’ right to respect for private life, as protected under Article 8.”

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