10 March 2020
The Court of Appeal emphasises the right to respect for non-gendered identity as it hands down judgment on the UK government's passport gender policy
The Court of Appeal today handed down its judgment in judicial review proceedings brought by Clifford Chance (on a pro bono basis) on behalf of Christie Elan-Cane challenging the legality of the UK Government's passport policy, which requires that either a "M" or "F" gender marker appear on every UK passport. Christie Elan-Cane, the appellant in the case, does not identify as either male or female, but identifies as non-gendered. The lack of a non-gender specific passport option ("X" passports) impacts on Christie's ability to obtain and use a passport on equal terms with persons who identify as exclusively male or female.
The Court held that the policy is not unlawful. However, the Court also held that the European Convention on Human Rights (Article 8) guarantees a right to respect for non-gendered identity, rejecting the Government's cross-appeal on that point, and fortifying the important legal precedent litigation on gender identity set by the Court below.
The international context was key to the Court's conclusion. The Court concluded that, looking at the international approach to the issue of non-gendered identity/X Passports, as yet, there is no consensus as to the correct approach. In those circumstances, the Court held, the Government has a wide discretion as to how to approach the issue, and its refusal to issue X passports is not in breach of Article 8. However, the Court also recognised that may not remain so, if the international trend towards recognition of the right to respect for gender variant identity continues, and observed that "there is a respectable argument that we are approaching a time when the consensus within the Council of Europe will be such that 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".
Rejecting the Government's cross appeal as "ill-founded", the Court was clear that the right to respect for private life under Article 8 of the ECHR does include a right to respect to a person's gender identity, including where a person identifies outside the binary concepts of male and female. Recognising the centrality of gender identity to the appellant's private life, the Court held that it was "obvious and indeed beyond that the facts of this case concern the Appellant’s private life and engage Article 8. There can be little more central to a citizen’s private life than gender, whatever that gender may or may not be. No-one has suggested (nor could they) that the Appellant has no right to live as a non-binary, or more particularly as a non-gendered, person. Indeed, a gender identity chosen as it has been here, achieved or realised through successive episodes of major surgery and lived through decades of scepticism, indifference and sometimes hostility must be taken to be absolutely central to the person’s private life. It is the distinguishing feature of this Appellant’s private life".
The practical significance of the Court's finding on Article 8 is important in terms of protecting the rights of persons who, like Christie, do not identify exclusively as male or female, and represents a helpful step towards full legal recognition of those persons. In practical terms, it means the Government, in taking policy decisions, must take into account the rights of those individuals. Indeed, the Court observed that, to the extent the Government's passport policy has been affected by thinking that Article 8 does not extend to protect the gender identity of such individuals, "it is to be hoped that [the Court's analysis regarding Article 8] may lead to a reconsideration of their approach".
Clifford Chance, working with Blackstone Chambers, is seeking permission to appeal the Court of Appeal's decision to the Supreme Court .
The Clifford Chance team is composed of Narind Singh (Partner), Eraldo d'Atri (Senior Associate), Anne Collins (Associate) and Jemima Roe (Associate), who instructed Kate Gallafent QC, Tom Mountford and Gayatri Sarathy (all of Blackstone Chambers), all acting pro bono.
Anne Collins, Clifford Chance Associate, says "the Court's approach to Article 8 represents an important development in terms of protecting the rights to respect individuals’ gender identity for those who do not identify exclusively as male or female, including members of the trans community, intersex people and those who – like Christie – identify as non-gendered. It means, in practical terms, that the Government must take into account the rights of such individuals when taking policy decisions, marking a milestone in civil rights litigation on gender identity and LGBTI+ rights."
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