Christie Elan-Cane (“Christie”), who does not identify exclusively as male or female, challenged the Government’s policy not to issue non gender-specific passports – i.e. the policy of requiring the details page of a passport to state either “M” or “F” under the gender identification. The case came before the Court of Appeal after a Judicial Review was dismissed by the High Court in June 2018. The Court of Appeal judgment was handed down on 10 March 2020.
Christie identifies as non-gendered, and the argument was that the lack of non-gender specific passports (“X passports”) restricted Christie from being able to use a passport on the same and equal terms as those persons who do identify as exclusively male or female.
The appeal was brought pursuant to Article 8 ECHR, as the current policy not allowing for a gender “X” category is said to infringe a person’s right to privacy. Firstly, the Court of Appeal dismissed the Secretary of State’s submission that Article 8 (respect for Private and Family life) was not engaged in this case, stating that gender identification clearly engages Article 8 as “there can be little more central to a citizen’s private life than gender, whatever that gender may or may not be”. Subsequently, however, the Court ruled that the Government does not have a positive obligation under Article 8 ECHR to provide gender “X” passports, and that the Government has a wide discretion as to how they wish to approach the issue. Therefore, the refusal to issue gender “X” passports was not in breach of Article 8 ECHR.
Although the Court of Appeal dismissed Christie’s appeal, the Court’s judgment contained multiple references indicating the need for countries to prepare themselves for their positive obligation to recognise non-binary people’s position, which will inevitably arise in the future.
Article 8 ECHR does encompass a right to respect for a person’s gender identity, including when an individual does not identify exclusively as male or female. The Court of Appeal recognised that the right to respect for an individual’s private life is protected by Article 8 ECHR and that this included the right to respect for an individual’s choice to identify as non-gendered.
In its judgement, the Court of Appeal considered factors which concern the state and its systems (what it referred to as “coherence”). Accordingly, the Court ruled that the issue of gender recognition cannot be considered in relation to the issuing of passports alone, as this merely constitutes a small part of a greater and more fundamental review of the current policy of “all government departments and areas of legislation”.
The Court of Appeal dismissed this appeal by a non-binary Appellant for the above coherency reasons. In doing so, the Court nevertheless drew attention to the need for thorough policy consideration, whilst differentiating between the legal positions of non-gender individuals and transgender people. Consequently, this case highlights the legislative changes citizens will likely witness in the future. The Court stated that:
“We are approaching a time when […] there will be a positive obligation on the State to recognise the position of non-binary including intersex individuals if and when that time comes. […] when the time comes, notwithstanding that there is a wide margin of appreciation as to how such a positive obligation is effected, the State will then have to take steps towards implementing that obligation”.
Christie intends to appeal this decision to the Supreme Court, stating that the law must be reformed in order to allow non-gendered people to have their identity recognised and protected by law, including on official documentation such as a passport.
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