An individual born female but who identifies as non-gendered has failed in their attempt to have a UK passport issued to them showing them as non-gendered, with an "X" marking, rather than male ("M") or female ("F").

The UK Supreme Court dismissed an appeal by Christie Elan-Cane from decisions of the High Court and Court of Appeal dismissing their application for judicial review of the policy of HM Passport Office ("HMPO") that an applicant for a passport must state on the application form whether their gender is male or female. The policy was confirmed following an internal review of gender marking in passports in 2014, in which HMPO noted that there had been very few requests for an X marking, other than from the appellant, and that UK legislation, including discrimination and equality legislation, is based on the categorisation of all individuals as either male or female. It stated that recognising a third gender would put HMPO "in isolation from the rest of government and society" and would result in administrative costs of about £2m being incurred. 

The appellant argued that the policy contravened the right to respect for private life guaranteed by article 8 of the European Convention on Human Rights, either taken on its own or read together with the prohibition on discrimination in article 14. 

Lord Reed (President), Lord Lloyd-Jones, Lady Arden, Lord Sales and Lady Rose unanimously dismissed the appeal.

Giving the sole judgment, Lord Reed said there was no judgment of the European Court of Human Rights which established an obligation to recognise a gender category other than male or female, and none which would require the Secretary of State to issue passports without any indication of gender. In fact, there did not appear to have been any case before the European Court concerned with the application of the Convention to individuals who identify as non-gendered.

Applying the principles established in the European Court's case law, there had been no violation of the appellant’s Convention rights. The degree of prejudice to the appellant attributable to the unavailability of an "X" passport did not appear to be as serious as that suffered by the applicants in the cases on which counsel for the appellant relied.

The appellant’s interest in being issued with an "X" passport was outweighed by considerations relating to the public interest put forward by the Secretary of State, including the importance of maintaining a coherent approach across government to the question of whether, and if so in what circumstances, any gender categories beyond male and female should be recognised. It was clear that this was a matter in which states would be afforded a high degree of latitude by the European Court, having regard to the absence of any consensus amongst the states which are parties to the Convention, the complexity and sensitivity of the issue, and the need for a balance to be struck between competing private and public interests.

Counsel for the appellant had argued that the domestic courts should nevertheless decide that the Secretary of State was obliged under the Human Rights Act to issue the appellant with an "X" passport, relying on comments made in Re G (Adoption: Unmarried Couples) [2008] UKHL 38. The Supreme Court decided that those comments were not binding, were inconsistent with a large body of authority and should be disapproved.

Lord Reed stated that when the European Court decided that there had been no violation of the Convention, because the relevant state had acted within the "margin of appreciation" afforded to it, it did not cede the function of interpreting the Convention to the states which are parties to the Convention, nor did it give their domestic courts the function of deciding whether the issue should be determined by the legislature, executive or the courts. States could create rights going beyond those protected by the Convention, but their power to do so existed independently of the Convention.

In the United Kingdom, lawmaking was generally the function of the legislature. If the Human Rights Act were to be interpreted as giving judges the right to find breaches of Convention rights even where the European Court would hold that United Kingdom law was in conformity with the Convention, there would be a substantial expansion of the constitutional powers of the judiciary at the expense of Parliament. Parliament was unlikely to have intended to effect such an encroachment upon parliamentary sovereignty when it enacted the Human Rights Act.

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