High Court judge to rule on gender-neutral passports case

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A High Court judge is to rule on a claim that the Government’s current policy on gender-neutral passports is “unlawful”.

Campaigner Christie Elan-Cane believes the UK’s passport application process, which requires individuals to indicate whether they are male or female, is “inherently discriminatory”.

Elan-Cane, who has fought for more than 25 years to achieve legal and social recognition for non-gendered identity, sees the issue of “X” (for unspecified) passports as a key focal point of the non-gendered campaign.

During a hearing in London in April, Elan-Cane’s lawyers challenged the lawfulness of the policy administered by Her Majesty’s Passport Office (HMP0), which is part of the Home Office, arguing that it breaches human rights laws.

Mr Justice Jeremy Baker, who also heard submissions on behalf of the Home Secretary that the case  should be dismissed, is to announce his decision on Friday.

He has been asked to quash the policy and order that it be “reconsidered according to the law”.

Kate Gallafent QC, for Elan-Cane, argued during the proceedings that the policy breaches the right to respect for private life, and the right not to be discriminated against on the basis of gender or sex, under the European Convention on Human Rights (ECHR).

She said: “For the claimant, obtaining and using a passport currently involves making a false declaration as to the nature of the claimant’s gender identity, which causes the claimant considerable distress.

“The lack of a non-gender specific passport option impacts on the claimant’s ability to obtain and use a passport on equal terms with persons who identify, and are identified, solely in terms of male or female.”

She told the judge that the impact of the passport office’s refusal to provide for X passports “affects not only non-gendered persons such as the claimant, but a broad section of the public” – including intersex and transgendered people and other individuals with gender dysphoria.

The policy requires Elan-Cane to “make a materially false declaration in respect of that core aspect of the claimant’s human personality or to forbear from holding a passport”.

She added: “If the claimant makes such a false declaration, the claimant must deny a fundamental aspect of the claimant’s identity.”

James Eadie QC, on behalf of the Home Secretary, submitted that the policy does not “interfere” with rights under the ECHR.

He argued that if the policy constituted an interference with Article 8 – the right to respect for private life – it was “justified” by the need to “maintain an administratively coherent system for the recognition of gender”, to maintain security and to combat identity theft and fraud, and “to ensure security at national borders”.

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