High Court rules UK’s refusal to grant gender-neutral passports is not ‘unlawful’

The High Court has dismissed a legal challenge against the UK’s refusal to grant gender-neutral passports.

Campaigners argued the current application process, which requires people to list themselves as male or female, was unlawful. 

But judges rejected claims that the policy is “inherently discriminatory” and breaches the European Convention on Human Rights (ECHR).

Christie Elan-Cane, who campaigns to achieve legal and social recognition for non-gendered identity, was supported by Human Rights watch in the challenge.

At the start of the judicial review in April, Kate Gallafent QC told the High Court the Britain’s current policy breaches the right to respect for private life and the right not to be discriminated against on the basis of gender or sex.

“For the claimant, obtaining and using a passport currently involves making a false declaration as to the nature of the claimant’s gender identity, which causes the claimant considerable distress,” she said.

“The lack of a non-gender specific passport option impacts on the claimant’s ability to obtain and use a passport on equal terms with persons who identify, and are identified, solely in terms of male or female.”

Ms Gallafent told Mr Justice Jeremy Baker that the impact of the passport office’s refusal to provide X passports ”affects not only non-gendered persons such as the claimant, but a broad section of the public”, including intersex and transgendered people and other individuals with gender dysphoria.

The lawyer asked for the High Court to quash the practice, comparing it requiring a person of Asian ethnicity to “declare their ethnicity to be either ‘white’ or ‘black’, or requiring a bisexual person to declare their sexual orientation to be either ‘heterosexual’ or ‘homosexual’.”

“X” or unspecified passports are already available in countries including Australia, Canada, New Zealand, India, Pakistan and Malaysia, recognised by the UK Border Force and International Civil Aviation Organisation.

Lawyers representing the Home Secretary argued that the case should be dismissed and said Britain’s policy does not affect ECHR rights.

A written submission from James Eadie QC claimed that any interference with the right to respect for private life would be justified by the need to “maintain an administratively coherent system for the recognition of gender”, ensure security and combat identity theft and fraud.

He said that any change would incur “significant administrative and financial costs” to HM Passport Office and have a far wider impact.

More than 70 MPs from all parties supported a motion tabled by Liberal Democrat Norman Lamb last year calling on the government to bring in X passports.

“People are compromised and diminished as a result of inappropriate gender references on their personal identity information,” it read.

“The current discriminatory policy denies non-gendered and bi-gendered people a legitimate identity.”


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