United Kingdom Supreme Court: Rejecting the demand for “X” marker passport (unspecified gender) for non-gendered people, the Bench of Lord Reed, President Lord Lloyd-Jones Lady Arden Lord Sales Lady Rose, JJ., stated,
“It is true that applicants, including those who identify as non-gendered, have to select either “male” or “female”, but the purpose of providing that information is not to inform HMPO as to the applicants’ feelings about their sexual identity…”
The question for adjudication was, whether article 8 of the European Convention on Human Rights either taken in isolation or read together with article 14, impose an obligation on a contracting state, when it issues passports, to respect the private lives of individuals who identify as non-gendered, by including a non-gendered (“X”) marker for the passport-holder’s gender, as an alternative to the markers for male and female?
The appellant, a campaigner for the legal and social recognition of a non-gendered category of individuals, identifies as non-gendered. According to the appellant, “X” passports (that is to say, passports in which an individual’s gender may be described not only as “M” or “F” but also as “X”) were a focal point of the campaign. The appellant argued that Her Majesty’s Passport Office’s (“HMPO”) policy that an applicant for a passport must state on the application form whether their gender is male or female contravened the Convention rights of individuals who do not identify as either male or female.
Stand taken by Home Secretary
In 2014 HMPO completed an internal review of gender marking in passports and noted:
1. The record of a person’s gender in their passport is used for a variety of purposes, i.e. to assist in verifying the identity of applicants for passports.
2. Gender recorded on the passport appears to match the gender of the person using the passport. This is particularly valuable in the case of persons with names which may not be indicative of gender to a border officer who is unfamiliar with the traveller’s language or culture.
3. It enables officials to deal appropriately with members of the public in passport-related matters, for example by addressing them in appropriate terms, and by arranging for physical checks at borders to be carried out by officers of the appropriate gender, without their having to ask embarrassing questions about the passport-holder’s gender.
4. United Kingdom legislation, including discrimination and equality legislation, is based on the categorisation of all individuals as either male or female (and, if they are parents, as either mothers or fathers). There is no legislative provision for the recognition of individuals as non-gendered.
5. Introducing an “X” gender marker in passports would also result in administrative costs of about £2m being incurred.
The present case
Demeaning and Distressing to Carry Passport not Disclosing Real Identity
The appellant maintained that it was demeaning and distressing to use a passport as an identification document, e.g. example when opening a bank account, when it does not reflect the appellant’s identification as a non-gendered person. It was also argued that applicants for passports who identify as non-gendered are forced to make a false declaration of their identity. There was also said to be a risk of difficulties or harassment when a person who identifies as non-gendered uses a passport at borders.
Opining that in the United Kingdom the need to establish one’s identity arises only occasionally; e.g., when accessing certain financial services, such as opening a bank account, the Bench stated that when the need to establish one’s identity arises, there is no obligation to use a passport for that purpose. The Bench stated that the gender recorded on the passport can also be used for purposes which are associated with the passport-holder’s appearance and physiology rather than their innermost thoughts.
Therefore, the Bench was of the view that the form is concerned with the applicants’ gender as a biographical detail which can be used to confirm their identity by checking it against the birth, adoption or gender recognition certificates provided and other official records. It is therefore the gender recognised for legal purposes.
Whether NHS’s action to provide free hysterectomy to the appellant on one hand and denying “X” marker passport on the other contradictory?
Referring to the European court’s decision in B v France and Goodwin v United Kin concerning transsexuals, where it was regarded as illogical for the state to provide gender reassignment surgery, on the one hand, but to decline to give legal recognition to the acquired gender, on the other hand, the appellant emphasised that the NHS had treated the appellant’s gender dysphoria by providing the appellant with a hysterectomy it was therefore incoherent for the Secretary of State then to decline to provide the appellant with an “X” passport.
Rejecting the arguments of the appellant the Bench pointed out two flaws to consider it ill-founded: First, the NHS did not recognise the applicant as being a non-gendered person: what it recognised was that the applicant was suffering from the medical condition of gender dysphoria, and it provided medical treatment to alleviate that condition. Secondly, the fact that the Government, through its funding of the NHS, bore the cost of the appellant’s medical treatment did not logically entail that it should in addition bear the far greater costs which would be involved in introducing “X” passports, or accept the other disadvantages.
There are agreed to be six contracting states Denmark, Malta, Iceland, Netherlands, Austria and Germany) of the Council of Europe which, in some circumstances, allow passports to include markers other than male and female. Other 41 contracting states issue passports only with male or female markers. Other countries which permit passports to bear an indicator other than male or female are New Zealand, Australia, India, Nepal, Pakistan, in the case of transgender people and Canada.
The Bench observed, there is no legislation in the United Kingdom which recognises a non-gendered category of individuals. On the contrary, legislation across the statute book assumes that all individuals can be categorised as belonging to one of two sexes or genders (terms which have been used interchangeably). Some rights differ according to whether a person is a man or a woman: for example, rights of succession, maternity rights, female genital mutilation etc.
Regarding the appellant’s contention that the International Civil Aviation Organisation (ICAO), a United Nations agency had issued international standards permitting to issue passports with “M”, “F” or “X” (denoting “unspecified”) in the section dealing with sex or gender, the Bench observed that introducing an “X” gender marker in passports would result in administrative costs of about £2m being incurred. The Bench remarked,
“The ICAO is not responsible for the security of this country, or any other: the Secretary of State is. The ICAO’s willingness to permit countries to use an “X” marker, if they choose to do so, does not imply that such a course of action is without security implications.”
Commenting on the findings of Court of Appeal with regard to absence of evidence relating to difficulty for National security, specifically considering the visitors in United Kingdom from countries which have permitted “X” markers for many years, the Bench stated, the absence of evidence is not evidence of absence as there was no evidence before the Court of Appeal which contradicted, or even questioned, the evidence of the officials with responsibility for security.
Positive Obligation under European Convention
Turning to consider the margin of appreciation with regard to positive obligation on the State under European Convention, the Bench stated the width of the margin of appreciation varies according to the circumstances which requires two factors to be determined: first, whether a particularly important facet of an individual’s existence or identity is at stake, and secondly, whether there is a consensus within the member states of the Council of Europe. Accordingly, the Bench opined that no particularly important facet of the appellant’s existence or identity was at stake, specifically because it was only the designation of the appellant’s gender in a passport which was in issue and that there is no consensus among the member states of the Council of Europe that passports should be available with an “X” marker, whether it is taken as signifying membership of a non-gendered category or of an unspecified gender.
In the above backdrop, the Bench concluded that the Convention imposes no such obligation to issue passports with “X” marker, at least at the present time. Accordingly, the appeal was dismissed. [R v. Secretary of State,  2 WLR 133, decided on 15-12-2021]