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

The appellant, who identifies as non-gendered, challenged the Home Secretary's policy requiring passports to display only male or female gender markers. The Supreme Court unanimously dismissed the appeal, holding that neither Article 8 nor Article 14 of the ECHR imposed an obligation on the UK to issue passports with an 'X' (non-gendered) marker.

Facts

The appellant was born female but underwent surgical procedures to alleviate gender dysphoria and now identifies as non-gendered. Since 1995, the appellant repeatedly requested a passport without a male or female gender marker, but Her Majesty’s Passport Office (HMPO) maintained a policy requiring all passports to display either ‘M’ or ‘F’. The appellant challenged this policy as incompatible with Convention rights under Articles 8 and 14 of the European Convention on Human Rights (ECHR).

Policy Background

HMPO’s policy requires applicants to declare their gender as male or female. Gender markers serve purposes including identity verification, security checks at borders, and administrative coherence across government. Internal reviews in 2014 and 2016 concluded that introducing an ‘X’ marker would be administratively isolated from wider UK legislation, which recognises only male and female genders.

Issues

The Supreme Court addressed two principal questions:

1. Does Article 8 of the ECHR, alone or with Article 14, require the UK to issue passports with a non-gendered ‘X’ marker?
2. Does the Human Rights Act 1998 impose such an obligation independently of the ECHR?

Judgment

Article 8 Analysis

Lord Reed, delivering the unanimous judgment, accepted that the appellant’s identification as non-gendered falls within the concept of ‘private life’ under Article 8. However, he emphasised that positive obligations under Article 8 require balancing individual interests against community interests, with contracting states afforded a margin of appreciation.

“the degree of prejudice to the appellant which is attributable to the unavailability of an ‘X’ passport does not appear to be comparable to that suffered by the applicants in the cases before the European court on which counsel relied, such as B v France and Goodwin v United Kingdom.”

The Court found that there was no European consensus on issuing ‘X’ passports; only six Council of Europe states permitted such markers in limited circumstances. The Court attached weight to the Secretary of State’s evidence regarding security concerns and the administrative costs (approximately £2 million) of introducing such markers.

Coherence of Administrative System

The Court emphasised the importance of maintaining coherent gender recognition across UK law and administration:

“there is no legislation in the United Kingdom which recognises a non-gendered category of individuals. On the contrary, legislation across the statute book assumes that all individuals can be categorised as belonging to one of two sexes or genders.”

Article 14 Claim

The Court rejected the Article 14 claim, holding that the difference in treatment was justified for the same reasons applicable to Article 8. The legitimate aims of administrative coherence and security provided objective justification.

Re G Dicta Disapproved

The appellant argued, based on dicta in In re G (Adoption: Unmarried Couples), that domestic courts could find a violation of Convention rights even where the European Court would permit a margin of appreciation. The Supreme Court disapproved these dicta, holding they were obiter, based on a misunderstanding of the margin of appreciation doctrine, and inconsistent with the structure and purpose of the Human Rights Act 1998.

“the dicta in Re G (1) are best understood to have been obiter, (2) are based upon a misunderstanding of the nature of the margin of appreciation doctrine, (3) are difficult to reconcile with the structure and purpose of the Human Rights Act.”

Implications

This judgment clarifies that UK courts should not depart from Strasbourg jurisprudence merely because the European Court permits a margin of appreciation. The decision confirms the constitutional relationship between domestic courts and the European Court of Human Rights, reinforcing that Convention rights under the Human Rights Act have the same content as under international law. The ruling leaves the question of non-gendered recognition to Parliamentary consideration as part of broader policy review across government.

Verdict: Appeal dismissed. The Supreme Court unanimously held that neither Article 8 nor Article 14 of the ECHR, nor the Human Rights Act 1998, imposed an obligation on the Secretary of State to issue passports with a non-gendered ‘X’ marker.

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