09:11, October 11 40 0 theguardian.com

2017-10-11 09:11:02
Ministers to face court challenge over gender-neutral passports

An equality campaigner has won permission to challenge the Home Office’s refusal to issue gender-neutral, or X passports.

Christie Elan-Cane welcomed the decision by Mr Justice Gilbart in the high court in London that there would be a full judicial review of the government’s policy.

“I’m elated,” said Elan-Cane, who has pursued the issue for more than 25 years. “It’s just one stage, but it’s going the right way.”

UK passports currently restrict sex designations to male or female. Ten countries permit their citizens to opt for a third category, X, or unknown.

Canada was the most recent to offer its citizens gender-neutral passports. Other states that allow a third option are Australia, Denmark, Germany, Malta, New Zealand, Pakistan, India, Ireland and Nepal. X passports are approved by the ICAO, the UN agency that regulates international air travel.

As many as 1% of the UK population could apply for an X passport, according to written arguments submitted by Kate Gallafent QC, counsel for Elan-Cane. They include intersex individuals – people born with biological characteristics of both sexes – transgender people, and others “with gender dysphoria … gender variant, non-binary and other analogous categories of gender identity”.

There was a clear, international trend in favour of recognising the gender-neutral status, she said. Last year the Commons women and equalities select committee recommended following Australia’s lead in introducing X passports. Elan-Crane appeared before the committee two years ago to give evidence for their inquiry into transgender equality.

Before the court hearing, Elan-Crane said: “Legitimate identity is a fundamental human right but non-gendered people are often treated as though we have no rights. The UK’s passport application process requires applicants to declare whether they are male or female. It is inappropriate and wrong that someone who defines as neither should be forced to make that declaration.’’

Elan-Cane has argued that the government is discriminating against its own citizens since it already allows holders of foreign X passports to enter the country.

HM Passport Office has refused to grant X passports on the grounds that it would affect other legislation, cost too much to change computer records and increase the need for consular support abroad for gender-neutral British citizens.

Referring to the human rights issues involved, Sarah Hannett, counsel for the Home Office, said: “This is a matter of delicate social policy. Member states [of the Council of Europe] have a margin of discretion as to how they advance this agenda.”

Gilbart, however, ruled that a full judicial review should go ahead. “This is an arguable case,” he said. No date has yet been set for the full high court hearing, which is scheduled to last two days.

Narind Singh, a partner at the law firm Clifford Chance, which represented Elan-Cane on a pro bono basis, said: “We are delighted that the court has granted permission for a full hearing of this significant public interest case on the fundamentally important issue of the right to respect for individuals’ identity.

“Gender identity is a fundamental part of an individual’s intimate, personal identity and X passports are a crucial step in the protection of the human rights of this group of individuals, who otherwise face an unacceptable choice between forgoing a passport and making a false declaration and using a passport which misrepresents their identity.”

At the weekend it emerged that the Office for National Statistics (ONS) had suggested the “sex” question in the next census, in 2021, could be made voluntary in response to claims that it discriminates against transgender people.

The move would make the UK one of the first countries in the world not to require its citizens to tell officials what sex they are. A two-step option, with separate sex and gender identity questions, was ruled out.