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

In brief

The appellant, who identifies as non-gendered and is categorised for legal and administrative purposes as female [2], 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. Article 8 applied (this was not disputed), but the Court, like the courts below and both parties, treated the case as one about a positive obligation rather than an interference, and held that, given the wide margin of appreciation, no such obligation exists [30]-[32], [55], [62], [110]. There was no European consensus requiring an 'X' option and the policy pursued legitimate aims of security and administrative coherence. The only qualification in the conclusion is temporal: the Convention imposes no such obligation at least at present [110]. The Court did not say what might change the answer.

Key provisions

• paras-55-67 — Wide margin of appreciation and no European consensus: no Convention obligation to issue an 'X' passport : It was no longer disputed that the appellant's identification as non-gendered is an aspect of private life under Article 8. The Court analysed the case as one about a positive obligation [30]-[32] and, given the wide margin of appreciation and the absence of consensus [55]-[62], concluded that the Convention imposes no obligation to provide an 'X' passport [62], [110]; it stated no general rule about gender-marker policies. In this case the Article 14 complaint was in essence the same complaint as under Article 8, seen from a different perspective, and failed for the same reasons [65]-[67].

When relevant

Non-binary identity cases, Article 8 / Article 14 ECHR gender-identity claims