R (on the application of Elan-Cane) (Appellant) v SSHD (Respondent)

R (on the application of Elan-Cane) (Appellant) v Secretary of State for the Home Department (Respondent)

UKSC 2020/0081

Court of Appeal (Civil Division)

The Appellant was born female but underwent several operations that were successful in achieving the desired status of "non-gendered." From 1995 onwards the Appellant has been in contact with Government Departments to seek to persuade the Government that a passport should be issued to the Appellant without the necessity of making a declaration of being either "male" or "female". This could be achieved by a third box being added to the passport application form allowing a person to mark that box with an "X" indicating gender "unspecified".

The Government refused to do so but conducted internal reviews to consider whether policy change was required. Its position throughout the proceedings has been that the current passport policy should not be considered in isolation, but as a part of a more fundamental review, which has begun but has not yet been completed.

The Appellant filed judicial review proceedings challenging the Government’s passport policy. The judicial review was dismissed by the High Court and Court of Appeal. The Appellant appeals to this court.

The issues are:

Whether the Court of Appeal was wrong in its conclusion that Her Majesty’s Passport Office’s Policy that (i) an applicant for a passport must declare their gender/sex as being either male or female
(ii) a passport will only be issued bearing a male ("M") or female ("F") indicator in the gender/sex field on the face of the passport and will not be issued with an "unspecified" ("X") gender marker does not unjustifiably breach articles 8 and 14 of the European Convention on Human Rights ("ECHR").

The Supreme Court unanimously dismisses the appeal. Lord Reed gives the sole judgment, with which the other Justices agree.

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