Fighting for legal and social recognition outside the gendered societal structure
'X' PASSPORTS IN THE UK: LANDMARK APPEAL HEARING
Date: TUESDAY 3RD - WEDNESDAY 4TH DECEMBER
Location: Royal Courts of Justice, Strand, London
Between: CHRISTIE ELAN-CANE AND THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Intervener: HUMAN RIGHTS WATCH
A High Court judgment handed down 22/06/18 ruled that Christie Elan-Cane’s claim merited the engagement of Article 8 of the European Convention on Human Rights [ECHR] “I am satisfied that the claimant’s Article 8 rights are engaged in this case so that the claimant’s right to respect for private life will include a right to respect for the claimant’s identification as non-gendered.” Para. 108
The judicial review application was submitted 02/06/2017 by Clifford Chance LLP on behalf of Christie Elan-Cane
Permission for the claim to proceed was granted in an oral hearing at the Administrative Court [a specialist court within the Queen’s Bench Division of the High Court] on 11/10/17
The claim concerns HM Government’s refusal to issue non gender-specific ‘X’ Passports and contests the policy administered by HM Passport Office [HMPO] on behalf of the UK Government [to refuse to issue ‘X’ Passports] as unlawful and inherently discriminatory
Despite the landmark precedent set by engagement of ECHR Article 8 as applied to a person of non-gendered identity, the High Court ruled the UK Government’s passport policy was not unlawful
High Court Judgment handed down 22/06/18 full text HERE
Permission to appeal the High Court's finding to the Court of Appeal was granted on the basis of the general importance of the issues raised in the case to the public interest. The appeal will be heard over two days commencing 3 December 2019.
HMPO’s passport policy and its effects:
Applicants for a UK passport must indicate whether they are male or female in a signed declaration;
- A mandatory requirement that UK passport applicants must indicate a gender affords no provision for individuals whose identities are neither male nor female;
- HMPO refuses to issue passports that display a permissible non gender-specific ‘X’ character rather than ‘M’ or ‘F’ [‘X’ Passports];
- Passport applicants whose identities are neither male nor female are subject to a discriminatory policy which forces them to declare an inappropriate gender otherwise they cannot obtain a passport;
- HMPO policy forces individuals whose identities are neither male nor female to deny a profound aspect of their identity whilst making a declaration known by the individual to be false;
- HMPO passport policy means that individuals in this category face an unacceptable choice between carrying a document for the purposes of travel and identification that is a gross misrepresentation [rather than an affirmation] of their identity and forgoing a passport;
- HMPO policy causes distress and humiliation to individuals whose social invisibility is further compounded;
- HMPO policy is effectively forcing a section already marginalized within gendered society to collude in their own oppression/invisibility through a forced and unwilling self-denial of their identity in return for issuance of a UK passport;
- Passport data is used by some third party institutions [eg. financial service providers] to confirm a person’s identity with the effect that documentation issued and personal records held by third parties on non-gendered individuals is consequentially inaccurate and misrepresentative.
Christie has engaged with politicians of all mainstream parties and worked with various government departments to raise awareness of the issues surrounding non-gendered identity over a number of years;
Christie approached Clifford Chance LLP and subsequently instigated legal proceedings against the UK Home Office in order that its passport policy should be subject to judicial review after the political process had been exhausted and had failed;
Christie is not seeking special treatment however does seek to be treated fairly;
Christie would not accept an ‘X’ Passport without a policy change on their issuance;
Christie’s pronoun [third person singular] is per/per/perself.
Christie is represented, on a pro-bono basis, by Narind Singh, Eraldo D'Atri, Anne Collins and Jemima Roe of Clifford Chance LLP and Kate Gallafent QC, Tom Mountford and Gayatri Sarathy of Blackstone Chambers.
Christie Elan-Cane: ‘’Legitimate identity is a fundamental human right but non-gendered people are treated as though we have no rights. It is unacceptable that someone who defines as neither male nor female is forced to declare an inappropriate gender in order to obtain a passport.”
“The UK Government has consistently and consciously shown a determined unwillingness to accommodate non-gendered peoples’ legitimate needs. We are socially invisible and we are ‘inconvenient’ in a society where so much – even the legislative system – is bound and classified in accordance to gender. The Government prefers to respond to our situation as though we do not exist rather than work towards enabling our assimilation into gendered society.’’
Anne Collins, Clifford Chance Associate: ‘‘This case raises important questions regarding the right to respect for individuals’ gender identity for those who do not identify exclusively as male or female, including members of the trans community, intersex people and those who identify as non-gendered. X Passports are crucial to the protection of the human rights of this group of individuals, and Clifford Chance is proud to be working with Christie to appeal the High Court's decision on the issue."
‘X’ Passports comply with UN International Civil Aviation Organisation [ICAO] accepted standards for Machine Readable Travel Documents
‘M’, ‘F’ and ‘X’ are permitted characters for ‘Sex’, a mandatory identification category for Machine Readable Travel Documents as specified in ICAO Document 9303
‘X’ indicates the passport holder’s sex as ‘’Unspecified’’
‘X’ Passports [or passports that display an alternative non gender-specific character] are allowed for in Australia, Austria, Canada, Denmark, Germany, Iceland, India, Malta, Netherlands, New Zealand, Nepal, Pakistan, and Uruguay.
The UK recognises ‘X’ Passports issued in another country as a valid travel document at border control points