The European Court of Human Rights has notified the UK Government of an application challenging the UK’s policy of requiring people to identify as either male or female on their passports.

The application to the European Court of Human Rights, made in June 2022, concerns the UK Government's refusal to make passports available with an "X" marker for unspecified sex or gender for people who are non-gendered, non-binary, intersex or whose gender identity is neither, or neither exclusively, male or female. The case is brought by Christie Elan-Cane, who is represented on a pro bono basis by Clifford Chance.

The Court has indicated that the application may become an “impact case”, a designation used for cases that may have important consequences beyond the individual applicant. Such cases may lead to a clarification of domestic or international law or practice, raise important social or legal questions, or concern significant human rights issues.

Notification of an application is a stage in the Court's proceedings at which a government is informed that an application against it is pending and is asked to respond to questions raised by the Court. In this case, the Court has asked the UK government to address whether Article 8 of the European Convention on Human Rights, which protects the right to respect for private life, applies to the facts of the case and whether the UK's passport policy violates that right. The Court has also asked whether the policy discriminates against Christie Elan-Cane, as a person who identifies as non-gendered, contrary to Article 14 of the Convention read together with Article 8.

The Court has further asked the UK Government whether its review of gender markers in official documents, being carried out by the National Institute of Economic and Social Research, has concluded, and whether any further reviews have been undertaken since the case was heard by the UK Supreme Court in 2021.

The case follows earlier proceedings before the English courts. In 2021, the UK Supreme Court dismissed Christie Elan-Cane’s appeal, finding that the UK Government was not, at the time required, under domestic human rights law, to introduce an “X” marker on passports. The application to the European Court of Human Rights asks the Court to consider whether the UK’s current policy is compatible with the UK’s obligations under the Convention.

International standards for machine-readable passports and travel documents set globally by the International Civil Aviation Organisation permit countries to issue passports with an “X” marker for unspecified sex or gender. Several jurisdictions have adopted “X” or equivalent markers on passports and other identity documents.

Saskia Mondon-Ballantyne, Senior Associate at Clifford Chance, said: “The Court’s decision to notify the UK Government of Christie's application is a significant and important development, particularly as only a small proportion of applications progress to the stage of a response being required from a respondent government. This case raises important questions about dignity, autonomy and recognition. For people affected by the policy, including non-gendered, non-binary and intersex people, being required to use a passport that does not reflect who they are may have significant practical and personal implications."

Claire Freeman, Partner at Clifford Chance, said: “Clifford Chance is proud to continue acting pro bono for Christie Elan-Cane in this long-standing challenge. The case raises important questions relating to the protection of the right to respect for private life and equal treatment under the European Convention on Human Rights. We welcome the Court’s decision to notify the application to the UK Government and its indication that the case may become an impact case."

The UK Government will now have an opportunity to respond to the Court's questions, which are available here.

The Clifford Chance team comprises Claire Freeman (Partner), Saskia Mondon-Ballantyne (Senior Associate), Euan Lynch (Associate) and Shona Roberts (Trainee). Clifford Chance has instructed Kate Gallafent KC, Tom Mountford and Gayatri Sarathy of Blackstone Chambers, all of whom are acting pro bono.