Challenge to the lawfulness of the current policy of Her Majesty’s Passport Office to require those who apply for the issue of a passport to declare whether their gender is either male or female, and that a passport will only be issued bearing an ‘M’ (male) or ‘F’ (female) indicator in the sex field, rather than an ‘X’, indicating an unspecified sex.
Held: The Appellant’s non-gender identity did fall within the scope of the right to respect for private life protected by Article 8 ECHR, and the Appellant’s Article 8 right was therefore engaged. However, the Government’s continuing policy did not amount to an unlawful breach of that right and there was therefore no positive obligation on the Government to provide an ‘X’ marker on passports.
A literal reading of the language might lead the reader to conclude that the Appellant ‘is not concerned with gender identification at all’, but the judge rejected that notion, saying: ‘my understanding of what is intended to be conveyed by the use of this phrase is that the claimant is seeking to identify outside the binary concept of gender, rather than entirely rejecting the concept of gender altogether. Furthermore, not only does the current NHS definition of gender dysphoria recognise situations outside the accepted concept of transgenderism, (and the claimant’s hysterectomy was undertaken by the NHS), but it is clear from Kate O’Neil’s evidence that the GEO recognises that an individual’s gender identity includes, ‘. . male, female, both, neither or fluid.’
That being the case, in my judgment, the claimant’s identification is one relating to gender and I consider that it is one encompassed within the expression ‘gender identification’ in Van Kuck.’
‘Although at one time the terms ‘sex’ and ‘gender’ were used interchangeably (and confusingly still are on occasions), due to an increased understanding of the importance of psychological factors (albeit these may be due to differences in the brain’s anatomy), sex is now more properly understood to refer to an individual’s physical characteristics, including chromosomal, gonadal and genital features, whereas gender is used to refer to the individual’s self-perception.’
Jeremy Baker J
[2018] EWHC 1530 (Admin), [2018] WLR(D) 397, [2018] 4 All ER 519, [2018] 1 WLR 5119
Bailii, WLRD
European Convention on Human Rights 8
England and Wales
Cited by:
Appeal from – Elan-Cane, Regina (on The Application of) v The Secretary of State for The Home Department and Another CA 10-Mar-2020
No right to non-gendered passport
The claimant sought judicial review of the police of the respondent’s policy requiring a passport applicant to identify themselves as either male or female. The claimant began life as a female, but, with surgery, asserted a non-gendered identity. . .
Cited – FDJ, Regina (on The Application of) v Secretary of State for Justice Admn 2-Jul-2021
The Claimant challenged the lawfulness of the Defendant’s policies relating to the care and management within the prison estate of persons who identify as the opposite gender from that which was assigned to them at birth. In particular, she . .
These lists may be incomplete.
Updated: 04 July 2021; Ref: scu.618996
