UK Supreme Court hears case for genderless passports

The UK Supreme Court this week heard that people should be able to declare their gender as ‘X’ on their UK passports and that current practice in the UK, whereby individuals can only declare as male or female, is discriminatory and should be changed by the Home Office.

The case was brought by Christie Elan-Cane, a non-gendered individual who identifies as per / per / perself and who called for the UK to follow the example of over a dozen countries who already offer the ‘X’ option on passports - namely Australia, Austria, Canada, Denmark, Germany, Iceland, India, Malta, Netherlands, New Zealand, Nepal, Pakistan and Uruguay.

Elan-Cane, who is represented by law firm Clifford Chance, is appealing an earlier decision of the UK Court of Appeal which ruled the Home Office’s refusal to issue gender-neutral passports as lawful. In that case, the Court of Appeal acknowledged for the first time that Article 8 of the ECHR guarantees a right to respect for a person’s non-gendered identity. The Court also stated that such refusal could constitute a breach of human rights in the future if non-binary identity continued to be recognised more widely internationally.

Elan-Cane was to argue in the Supreme Court that whilst “legitimate identity is a fundamental human right…non-gendered people are treated as though we have no rights”. Elan-Cane has sought a “gender unspecified” option per passport since 1995.

Counsel for Elan-Cane argued that there was “nothing controversial per se about having a passport where the sex is unspecified”, pointing out that the availability of an ‘X’ gender marker on passports internationally went “beyond the liberal countries” and offered “no evidence of administrative complications”. The Supreme Court had expressed some concern about the knock-on effect such a move could have beyond the realm of passports, with the UK government arguing that this could manifest in areas such as pension rights or prison policy in the UK; it was suggested that more time would be needed for the government to consider the “ramifications” of recognizing non-binary genders.

Judgment in the case has been deferred until a later date.



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