R (Christie Elan-Cane) v Secretary of State for the Home Department

The Court dismissed the claim that the Government has a positive obligation under Article 8 ECHR to provide such “X” passports, relying on the fact that the Government is currently carrying out a review in which “it will be necessary for the Government to consider to what extent if any, in an age of increasing social and legal awareness and acceptance of the importance of issues relating to diversity and equality, the recording of an individual’s sex and/or gender in official and other documentation is justified.” And “It will also be necessary to consider the extent to which other identities both within and beyond the binary concept of gender are to be recognised, and if so, whether they are to be self-determined or are to be objectively evidenced.” (paragraph 150). The Court also dismissed the claims that policy is discriminatory or flawed on conventional public law grounds.

In this decision, the UK courts have, for the first time, recognised that the right to respect for an individual’s private life guaranteed by Article 8 ECHR includes the right to respect for the fundamental identity of non-gendered, intersex, trans and non-binary people identifying as neither, or not exclusively, male or female (paragraph 107).

The Court noted that “rights afforded to individuals under the ECHR are ones which have to be interpreted in the light of changing conditions and in a dynamic and evolutionary manner. Therefore, not only may the situation amongst the Member and other States alter, but in particular in the present case the claimant will be entitled to scrutinise with care the results of the Government’s current review.” (paragraph 149) and that “once the review has occurred, then depending upon its outcome and whether and to what extent the identification of those who consider themselves to be non-gendered is legally recognised, the strength of the focused challenge in the present case may be required to be reassessed, in order to determine whether the current policy of the HMPO in relation to the issuing of “X” marked passports continues to be justified.” (paragraph 151).

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Kate Gallafent QC and Tom Mountford acted for the Claimant, Christie Elan-Cane, instructed by Narind Singh, Eraldo d’Atri and Anne Collins of Clifford Chance.

Flora Robertson acted for the intervener, Human Rights Watch, instructed by Joanna Constantis of Macfarlanes LLP.

Sir James Eadie QC acted for the Defendant, the SSHD, instructed by the Government Legal Department.