Government’s policy to not include an ‘unspecified gender’ option on passports found to be lawful
R (Elan- Cave) v SSHD [2020] EWCA Civ 363
- Related Member(s):
- Sarah Hannett QC
- Related Practice Area(s):
- Discrimination and Equality, Public Law
- Court:
- Court of Appeal (Civil Division)
This case is an appeal against a dismissal of a previous claim for judicial review. The appellant submits that the refusal of the Government to allow the appellant to apply for or be issued with a passport with an “X” marker in the gender field, indicating gender “unspecified”, is unlawful.
Held: appeal dismissed. The current policy of HMPO not to permit the Appellant to apply for and be issued with a passport with an “X” marker, does not at present amount to an unlawful breach of the appellant’s ECHR article 8 private life rights.
There is a respectable argument that we are approaching a time when the consensus within the Council of Europe’s Member States will be such that there will be a positive obligation on the State to recognise the position of non-binary including intersex individuals if and when that time comes. It follows that when the time comes, notwithstanding that there is a wide margin of appreciation as to how such a positive obligation is affected, the State will then have to take steps towards implementing that obligation.
Sarah Hannett was involved in this case.