UK Supreme Court told ‘X’ gender markers on passports needn’t be controversial in historic hearing

The Supreme Court has heard that there is “nothing controversial” about having a passport where a person’s sex is unspecified, in the first day of a case regarding ‘X’ gender markers in passports.

The case, which is the first transgender civil rights case to be heard by the UK Supreme Court, was brought by Christie Elan-Cane – a non-gendered person who first asked the government for a passport without an ‘M’ or ‘F’ gender marker in 1995.

Elan-Cane, whose pronouns are per/per/perself, has campaigned for almost 30 years to achieve legal and social recognition.

“There is nothing controversial per se about having a passport where the sex is unspecified,” Kate Gallafent QC, barrister for Elan-Cane, told the Supreme Court Monday (12 July). “The appellant has a right to live as a non-binary, or more particularly a non-gendered, person.”

Christie Elan-Cane’s case is that adding an X, for “unspecified gender”, to a passport is “far less controversial” than it would be to add a third gender option. “That might be different,” said Gallafent. “But this is simply [going from an M or F gender marker] to something that is not specified.”

“It has been available for decades and has been used by a large number of countries, going beyond the liberal countries to places like India and Pakistan.”

The Supreme Court was told that there is “no evidential basis” for the government’s suggestion that there would be “an adverse impact on the state” of implementing ‘X’ gender markers in passports. 

The justices also heard that an ‘X’ gender marker, which indicates that sex is not specified, is available in the passports of 13 countries with “no evidence of administrative complications”. 

And 20 US states have introduced identity documents with an X-type gender marker, Monica Carss-Frisk QC, for intervenor Human Rights Watch, told the court. When Elan-Cane’s case was first heard in October, 2019, there were only 17 US states who had done this.

“So it does seem that there is a pretty rapidly accelerating trend in that direction,” Carss-Frisk said.

Gallafent added: “When other pluralistic and democratic societies move in one direction, we should take that to account.”

Supreme Court judge says Christie Elan-Cane case goes further than passports

Lady Rose pointed out that the right to an ‘X’ gender marker in UK passports might “have a domino effect” and as such “it’s impossible for the court to confine its attention to passports only”.

The case before the Supreme Court this week was first heard by the High Court in 2018, and that judgment was appealed at the Court of Appeal in 2020. The case concerns HM Passport Office’s policy that only ‘M’ or ‘F’ gender markers are available in British passports.

Elan-Cane lost both legal fights, but both the High Court and the Court of Appeal ruled that per right to respect for private life is engaged under the European Convention on Human Rights.

Applicants for a UK passport must indicate whether they are male or female in a signed declaration. Christie Elan-Cane argues that it is discriminatory for the UK Home Office to refuse to offer passports with an ‘X’ gender marker for people who are not male or female, such as non-binary people.

The case continues tomorrow.