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

Today, the Supreme Court (UKSC) has handed down its judgement today in R (on the application of Elan-Cane) (Appellant) v Secretary of State for the Home Department (Respondent) [2021] UKSC 56. We asked Robin White, barrister specialising in employment and discrimination law at Old Square Chambers, for comment. Her thoughts have been compiled by the Blog’s Assistant Editor, Lavanya Sridhar.

Facts:

R (Elan-Cane) v Secretary of State for the Home Department is a judicial review case seeking to challenge the Government’s passport policy. The appellant’s argument is that the Government’s refusal to allow for an option to declare oneself as “non-gendered”/”unspecified” on a passport is unlawful. The appellant’s argument was that the Government should introduce the option of an ‘X’ marker on the passport to indicate the status of “non-gendered”.

The Government maintain the stance that the addition of a ‘X’ marker should not be dealt with in isolation with respect to passport policy, but rather needs to be part of a “co-ordinated approach across Government with regard to non-binary gender identity.”

The Court of Appeal held that the current passport policy, expecting people to declare their gender as either male or female, engages with Article 8 of the European Convention on Human Rights, but does not breach it.

It is this decision that the appellant challenged in the UKSC and judgement was given on.

Comment:

It must be remembered that the UKSC had to decide on whether there is a positive obligation on the UK Government to allow for passports to be marked with an ‘X’ to indicate “unspecified” in the gender/sex field on a passport, and not whether it is a good idea to do so.

There are two shining lights in this judgement:

  1. Binary trans people, as opposed to non-binary trans people, can have passports that reflect their gender; there is a general consensus amongst the members of the Council of Europe that allows this to be the case.
  2. There is no such consensus in the case of non-binary people. Even if there was consensus, a country is allowed a margin of appreciation and that validates the factors relied on by the UK government which include:
    • cost;
    • security considerations; and
    • state recognition of the terms ‘sex/gender’.

The judgement refers to ‘sex/gender’ in an interesting way, in that it is used interchangeably. The terms are conflated as in UK legislation it is referred to as one and the same.

The UKSC found that in the UK, in governmental terms, only two states of sex/gender are recognised presently and thus far there has been no move for a third state, namely that of ‘unspecified’ or ‘non-binary’, to be recognised.

Robin comments that she knows how triggering and unpleasant it is for non-binary people to be forced into straitjacketed, binary categories. They may be a small community, but it can be argued that their rights should be considered as much as the next person. In making her point, she refers to the apocryphal Victorian Marxist “quote” on how the progress of a society can be measured by the progress of women which, translated to the modern day, refers to how marginalised communities are treated.

Overall, she thinks that the UKSC judgement is probably legally correct. However, it is likely that this position will change in coming years.

In May of 2021, jointly with Nicola Newbegin, Robin published ‘A Practical Guide to Transgender Law’, Law Brief Publishing, in which Chapter 13 deals with ‘Name and Gender Marker Change’. Available to purchase here.

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