Clifford Chance

Supreme Court hands down judgment on the UK Government's passport gender policy in judicial review proceedings brought by Clifford Chance

The Supreme Court 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 case calls 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.

The Supreme Court ruled that the UK Government does not have a positive obligation to provide non gender-specific "X" passports.

Deon Fang, Associate at Clifford Chance, says:  "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, adds: "This judgment 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 given weight to the UK Government's stated objective of providing a coherent system of gender recognition across all government areas and legislation. 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.

The Clifford Chance team advising Christie includes Eraldo d'Atri (Senior Associate), Anne Collins (Senior Associate), Jemima Roe (Associate), Deon Fang (Associate), Saskia Mondon-Ballantyne (Associate) and Narind Singh (Partner), working alongside Kate Gallafent QC, Tom Mountford and Gayatri Sarathy of Blackstone Chambers.