The Wait for Gender X Passports Continues: Can the UK seek inspiration from South Asia?
The most recent case in the campaign to have a non-binary gender identity option included in British passports has failed in the Court of Appeal. In March 2020, the Court of Appeal in R(Elan-Cane) v Secretary of State for the Home Department unanimously dismissed the appeal against the Home Office’s refusal to issue gender-neutral passports. This decision has effectively left the movement for recognition of non-binary gender identities in limbo. The pressures of Brexit, and now a global pandemic, have placed strain on the government’s capacity to review this issue and proceed with making changes. While a private member’s bill demanding that gender-neutral passports be issued has been introduced to the House of Commons and may bring further public pressure to the issue, with the second reading scheduled for November 13th 2020, it seems unlikely that any real change will make its way into law anytime soon. Other jurisdictions such as Nepal and India have seen landmark court decisions mandating the recognition of non-binary gender identities, followed by piecemeal compliance by the government. While such an approach comes with its own concerns, the results it has produced are preferable to the standstill facing the UK, which is constrained by a conservative judicial environment.
The appellant in the case, Christie Elan-Cane, identifies as ‘non-gendered’. Since 1995, Elan-Cane has been campaigning the government to allow gender-neutral passports, that passport application forms should allow the applicant to mark the box ‘X’ indicating gender ‘unspecified’. Such efforts by Elan-Cane to achieve this result have been unsuccessful, with the government requiring that gender be declared as either ‘male’ or ‘female’. By contrast, Australia and New Zealand have introduced a gender ‘X’ marker. In June 2017, the appellant sought judicial review of Her Majesty’s Passport Office’s (HMPO) policy to provide only ‘male’ or ‘female’ gender options. The claim was dismissed, the judge finding that, while the claimant’s non-gender identity was within the scope of Article 8 right to respect of private life, there was no positive obligation on the government to provide an ‘X’ marker on passports and thus the HMPO’s policy was not unlawful.
The Court of Appeal in Elan-Cane was unwilling to order reform, dismissing the appeal. Lady Justice King asserted how coherence of the administrative and legal practices within a domestic system is an important factor in assessing whether positive obligations arise out of Article 8. She held that there was a wider consideration of respect for gender identity at play and thus the passport issue cannot be considered in isolation. Lady Justice King agreed with the court below that removing the requirement for gender specification on passport applications might raise further questions on the purpose of requesting gender information for any official records. Further, in Hämäläinen v. Finland, the Grand Chamber held that where there is no consensus within member states of the Council of Europe, the margin of appreciation afforded to the state remains relatively wide. With no such consensus existing among member states regarding either the broader issues of recognition of non-binary people or the narrow issue of gender-X passports, Lady Justice King determined there to be a wide margin of appreciation. As a result, the government was entitled to assert that it was inappropriate to review the issue of passports alone as any review into gender identity recognition should have a coherent approach across government. The reluctance by the court to throw its weight behind mandating that action be taken by the government is shaped by the mirror principle of Ullah that requires the national courts to follow Strasbourg jurisprudence in order to establish consensus across Europe. Without there being a precedent set in Strasbourg or a consensus among European governments, the UK court would be stepping out on a limb to recognise this positive obligation. This would not be consistent with the general environment of judicial conservativeness in the UK. The Court of Appeal’s unwillingness to mandate the protection of rights in this instance, is in line with other conservative aspects of the UK court’s behaviour, such as the lack of justiciability of polycentric and political issues, and the principle of judicial deference. When a wider consensus of legal recognition exists among member states, the UK courts will have a much stronger authority to assert that the state has a positive obligation and can be mandated to implement that obligation.
Thus, we see in the UK that the movement for recognition of non-binary gender identities has been stalled by a reluctance of the courts to mandate reform. Undoubtedly, Lady Justice King is correct in saying that providing a gender-X option in passports raises issues about gender requirements more generally; and there are potential merits in a wider-reaching government strategy. This justification is flawed, however, when the government does not deliver this change. Lady Justice King acknowledges that ‘other matters’ have occupied the government’s focus, resulting in a lack of progress towards gender recognition. The pressures of Brexit and now the Covid-19 pandemic have significantly limited the government’s and parliament’s legislative capacity, with the recognition of non-binary gender identities being one of its many victims. Thus, without a decision from the courts determining that the refusal to introduce gender-x passports is unlawful which would mandate action by the government, the reality is that no such review of gender identity has taken place or is scheduled for the near future. This leaves non-binary people in the same position as they were to begin with, lacking substantial recognition in government documentation.
This approach contrasts with that of Nepal and India. Instead of the courts trusting the government to initiate and implement their own coherent reform, the Supreme Courts in these jurisdictions utilised their constitution to establish rights to gender identity recognition and mandate legislative action from the government. In 2007, the Supreme Court of Nepal, in the landmark decision of Sunil Babu Pant & others vs Government of Nepal & others, held that ‘the state should recognise the existence of all-natural persons including the people of third gender other than the men and women’. The Supreme Court ordered the Government of Nepal to take steps towards making appropriate laws and amend existing law to enable people of different gender identities and sexual orientation to enjoy their rights without discrimination. What followed was a gradual piecemeal inclusion of a ‘third’ gender category in government documentation. Notably, there was the inclusion of a third gender in the 2011 census, and in 2015 the first Nepali citizens were issued with ‘third-gender’ citizenship certificate with passports marked O for ‘other’ instead of M for ‘male’ or F for ‘female’. These developments demonstrated how the 2007 Supreme Court decision aided LGBTQ+ activists in campaigning the government for the recognition of non-binary identities. The willingness of the Supreme Court in Nepal to recognise rights and mandate change from the government provides an example of an alternative route to recognition from the path that the UK is stuck on, and has led to significant improvements in gender identity recognition in Nepal.
However, the dangers of courts recognising rights to gender recognition and then mandating a framework for gender identity recognition ought to be recognised. Other jurisdictions have ended up developing legislative recognition of gender identity in a piecemeal fashion in a way which goes against the rights they intended to protect, facing some of the problems of incoherence that were envisaged by the British courts. In National Legal Services Authority v Union of India the Supreme Court of India recognised the legal identity of ‘third gender’ consisting of Hijra and transgender people, apart from ‘male’ or ‘female’, based on the ‘psyche of the person’. This decision has since resulted in the provision of ‘third gender’ passports. However, issue can be taken with this approach for excluding gender identities that do not fit into these discrete categories. The recent Transgender Persons (Protection of Rights) Bill 2019 has come under criticism for its process of legal gender recognition, which requires people to apply to District Magistrates to obtain ‘transgender certificates’, as well as the requirement of a medical certificate of proof of surgery for an applicant to change their legal gender to ‘male’ or ‘female’. This has been widely criticised as providing a significant amount of power to a government office to decide who ‘qualifies’ as trans or third gender, while also mandating surgical procedures to enable gender recognition. The issues with India’s development of recognition of non-binary gender identities demonstrate how the piecemeal approach may pose problems if it is not done in a way which is consistent and which keeps in mind the dignity and rights of non-binary and transgender people throughout. It can be interpreted that the Indian government sought to simply comply with the Supreme Court’s mandate of protection of gender recognition rights, rather than establish a coherent and comprehensive framework which has resulted in the problematic piecemeal changes that have been made.
When comparing the process of recognition of non-binary gender identities across these three jurisdictions, one cannot help but be frustrated by the UK’s position. The success of Nepal created by the Supreme Court’s freedom and willingness to order reform from the government has resulted in significant improvements. The judicial environment of the UK contrasts significantly to Nepal and India whose codified constitutions facilitate a tradition of strong positive rights. The requirement for consensus among European Council states regarding the protection of ECHR rights limits the UK court’s mobility. While the problems that have been experienced in India demonstrate that the concern that the UK’s courts have around coherence are valid, the delays to recognition of non-binary gender identities are very damaging to the dignity and mental health of non-binary people. This is particularly so when the likelihood of the government having the capacity to engage with such a review is so limited due to the political and legislative pressures of Brexit and Covid-19. Lord Justice Irwin hoped that the finding in Elan-Cane that Article 8 rights were indeed engaged will encourage change from the government. However, with no clear mandate from the courts, it is likely that the government cannot be trusted to effect real change any time soon. With plans for the decision in Elan-Cane to be appealed directly to Supreme Court, the hope is that sufficient momentum among European states will have built for the court to be able to mandate real change for non-binary people. For now, the UK falls further behind other jurisdictions in its recognition of non-binary gender identities.
 2020 EWCA Civ 363 
 European Convention of Human Rights 1953
 2020 EWCA Civ 363 
 2020 EWCA Civ 363 
 (2014) 37 BHRC 55 
 Only five countries within the Council of Europe permit the use of “X” markers”, see R(Elan-Cane) v Secretary of State for the Home Department 2020 EWCA Civ 363 
 R v Special Adjudicator (Respondent) ex parte Ullah (FC)  UKHL 26
 2020 EWCA Civ 363 
 2 NJA, 2008 262
 Ibid, 
 Ibid, 
 2014 5 SCC 438
 Hijra refers to a distinct socio-religious and cultural community that exists in several South Asian cultures. Hijra people identify as neither completely male nor female.
 2014 5 SCC 438, 448E
 Transgender Persons (Protection of Rights) Bill 2019, Chpt. 3 (5)
 Transgender Persons (Protection of Rights) Bill 2019, Chpt. 3 (7)
 2020 EWCA Civ 363