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

In brief

The appellant, a non-gendered person, challenged HM Passport Office policy requiring passport applicants to declare gender as male or female, with no 'X' option. The Supreme Court dismissed the appeal. Although Article 8 was engaged, the interference was within the UK's margin of appreciation. There was no European consensus requiring an 'X' option and the policy pursued legitimate aims of security and administrative coherence. The court left open possibility of different outcomes with changes in consensus or policy review.

Key provisions

• paras-81-107 — Margin of appreciation and lack of European consensus on non-binary recognition: Article 8 is engaged by gender-marker policies but the absence of European consensus on non-binary recognition leaves a wide margin of appreciation. The UK's policy falls within that margin. Article 14 does not add anything separate where Article 8 is unviolated.

When relevant

Non-binary identity cases, Arguments about the scope of section 7 EA 2010 'gender reassignment', Article 8 / Article 14 ECHR gender-identity claims