Campaigner loses Supreme Court challenge over UK gender-neutral passports

A campaigner has lost a Supreme Court challenge against the UK Government over its policy of not allowing gender-neutral passports.

Christie Elan-Cane, who has campaigned for more than 25 years to achieve legal and social recognition for non-gendered identity, brought a case to the UK’s highest court in the latest round of a legal battle for “X” passports.

Challenging the policy administered by Her Majesty’s Passport Office (HMPO), the campaigner argued the UK’s passport application process, which requires individuals to indicate whether they are male or female, breaches human rights laws.

However, in a judgment on Wednesday, the Supreme Court unanimously dismissed the appeal.

Christie Elan-Cane, who has campaigned for more than 25 years to achieve legal and social recognition for non-gendered identity, brought a case to the UK's highest court in the latest round of a legal fight for "X" passports. Picture: Dominic Lipinski/PA Wire

Giving the ruling, Lord Reed said: “The form is concerned with the applicants’ gender as a biographical detail, which can be used to confirm their identity by checking it against the birth, adoption or gender recognition certificates provided and other official records.

“It is therefore the gender recognised for legal purposes and recorded in those documents, which is relevant.”

Elan-Cane said the case would now be taken to the European Court of Human Rights following Wednesday’s judgment, adding the “UK is on the wrong side of history”.

The President of the Supreme Court found Elan-Cane’s interest in being issued with an “X” passport was “outweighed” by other considerations, including “maintaining a coherent approach across government” as to what genders are recognised.

Lord Reed continued: “There is no legislation in the United Kingdom which recognises a non-gendered category of individuals.

“On the contrary, legislation across the statute book assumes that all individuals can be categorised as belonging to one of two sexes or genders, terms which have been used interchangeably.”

The four justices sitting with Lord Reed, Lord Lloyd-Jones, Lady Arden, Lord Sales and Lady Rose, also found that a binary approach to gender forms the basis of a wide variety of public services.

After the ruling, Elan-Cane said: “I was not surprised by today’s outcome, but I was taken aback by the tone of the Supreme Court judgment. There was a clear lack of understanding/empathy with the issues raised in the case.

“I’m not sure why the Supreme Court granted permission for the case to proceed because the outcome appeared to have been pre-determined.

“The UK is on the wrong side of history and this is not the end of ‘X’ passports because we are going to Strasbourg.”

At a hearing in July, justices were told the existing gendered policy had a significant impact on the lives of those affected.

Kate Gallafent QC, for Elan-Cane, said non-gendered people, like the campaigner, and non-binary people have to make a false declaration to get a passport, which “strikes at the foundation of the standards of honesty and integrity to be expected of such official processes”.

However, Lord Reed said: “Notwithstanding the centrality of a non-gendered identification to the appellant’s private life, it is difficult to accept that a particularly important facet of the appellant’s existence or identity is at stake in the present proceedings.”