Government’s policy to not include an ‘unspecified gender’ option on passports found to be lawful


Re: R (Elan- Cave) v SSHD [2020] EWCA Civ 363

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.