New Judgment: R (on the application of Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56

On appeal from: [2020] EWCA Civ 363 

The Supreme Court unanimously dismissed this appeal concerning whether the Court of Appeal was wrong in its conclusion that Her Majesty’s Passport Office’s policy does not unjustifiably breach articles 8 and 14 of the European Convention on Human Rights (“ECHR”).The policy in question holds that (i) an applicant for a passport must declare their gender/sex as being either male or female and (ii) a passport will only be issued bearing a male (“M”) or female (“F”) indicator in the gender/sex field on the face of the passport and will not be issued with an “unspecified” (“X”) gender marker.  

The appellant was born female but identifies as non–gendered. In 1995, the appellant contacted the UK Passport Authority to inquire whether it was possible for a passport to be issued without making a declaration of being male or female. The appellant was informed that it was not. The appellant accordingly applied for, and was issued with, a passport in which the gender was recorded as female. The appellant made similar inquiries in 2005 and in correspondence between 2010 and 2016, with similar results. 

In 2014, HMPO completed an internal review of gender marking in passports. It noted that there had been very few requests for a non-gendered (“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 Government repeated these points when it considered the issue in 2016. 

The appellant argues that the policy operated by HMPO contravenes the right to respect for private life which is guaranteed by article 8 of the European Convention on Human Rights (“the Convention”), either taken on its own or read together with the prohibition on discrimination in article 14. The High Court and the Court of Appeal rejected that argument. The appellant now appeals to the Supreme Court. 

 

Held: The Supreme Court unanimously dismissed the appeal.  

The central question is whether HMPO’s policy breaches the UK’s obligations under the Convention. There is no judgment of the European Court of Human Rights (“the European Court”) which establishes 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 does 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 case law of the European Court, there has been no violation of the appellant’s Convention rights. The degree of prejudice to the appellant which is attributable to the unavailability of an “X” passport does not appear to be as serious as that suffered by the applicants before the European Court in the cases on which counsel for the appellant relied. The appellant’s interest in being issued with an “X” passport is 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 is clear that this is 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. 

The question of whether an applicant’s rights under the Convention have been violated is a question which the European Court answers for itself. When the European Court decides that there has been no violation of the Convention, because the relevant state has acted within the “margin of appreciation” afforded to it, it does not cede the function of interpreting the Convention to the states which are parties to the Convention, nor does it give their domestic courts the function of deciding whether the issue should be determined by the legislature, executive or the courts. States can of course create rights going beyond those protected by the Convention, but their power to do so exists independently of the Convention and is subject to their own established constitutional principles. Under those principles, as they apply in the United Kingdom, law-making is 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 is unlikely to have intended to effect such an encroachment upon parliamentary sovereignty when it enacted the Human Rights Act.  

 

For judgment, please see: Judgment (PDF) 

For press summary, please see: Press summary (HTML version) 

For non-PDF version of the judgment, please see: Judgment on BAILII (HTML version) 

 

Watch hearing 

12 July 2021 Morning session Afternoon session 

13 July 2021 Morning session Afternoon session 

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