Britons should be allowed to state their gender as X on their passports instead of just male or female, the Supreme Court will hear today.
Lawyers for Christie Elan-Cane, who identifies as non-gendered, will ask the court to declare that a ban on “X passports” is a breach of human rights. The legal challenge has gone to the top bench after two lower courts ruled that the government’s position was lawful.
The Court of Appeal ruled last year that policy requiring British passports to have a male or female gender category did not breach Elan-Cane’s rights, supporting a High Court ruling in 2018. The judges did acknowledge that the European Convention on Human Rights (ECHR) guaranteed a right to respect for non-gendered identity.
Elan-Cane, 63, has fought for more than 25 years to achieve legal and social recognition for non-gendered identity. Their legal team will maintain in a Supreme Court hearing, which opens today and is expected to last until tomorrow, that non-gender specific passports are permitted internationally and available in several countries.
Despite rulings supporting the status quo in Britain, the courts have found that the ECHR includes a right to respect for a person’s non-gendered identity. Elan-Cane’s lawyers said that recognition of that point in the two earlier rulings had been “a milestone in LGBTQ+ civil rights litigation as it marks the first time the UK courts have recognised that Article 8 [of the convention] guarantees a right to respect for those who identify outside the binary concepts of male and female”.
Permission to appeal against the case to the Supreme Court was granted on the basis that the challenge raised issues of general public importance.
Eraldo d’Atri, senior associate at Clifford Chance, the London law firm representing Elan-Cane, said: “This case raises important questions regarding the right to respect for individuals' identity, specifically for those who identify as neither or not exclusively male or female.”
He added that access to X passports was “crucial for the protection of the human rights of this demographic who are otherwise forced to use a passport which misrepresents their identity”.
The legal team pointed out that this month Antony Blinken, the US secretary of state, said that a nongender-specific option would be available on US passports.
