Elan-Cane, R (on the application of) v Secretary of State for the Home Department [2021] UKSC 56 (15 December 2021)
Subjects invoked: 9. 'Evidence'.18. 'Human Rights'.2. 'Citizen'.
Rule of thumb:Can transgenders force the Government to offer them a gender neutral passport so that private organisations do not know their private details if they are asked for I.D.? No, this is not a human rights violation, and there is no statute on it, so this cannot be done with the passports.
Background facts:
This case invoked the subjects of citizenship, human rights and evidence.
The facts of this case were very straightforward. Elan Cane was renewing passport, and wanted an X on the passport rather than having to declare as male or female. The Passport Office refused to do this and Elan Cane raised a Judicial Review.
Judgment:
The Court upheld the arguments of the passport office. The Court affirmed that the scientific evidence about certain individuals not being a man or a woman although rational, was not widely accepted across society, and so they could not integrate this minority-believed scientific evidence into a Court Judgment before it was widely accepted. The Court affirmed that this was an important principle of expert evidence. Essentially, new or minority expert evidence cannot be accepted by a Court. The Court affirmed that as what the Passport Office were doing was based upon a sound underlying scientific rationale, this therefore did not violate Elan Cane’s right not to be discriminated or violate the right to privacy and a family life. In short, there is no category of X on British passports issued within the UK.
Ratio-decidendi:
Lord Reed Ratio-Decidendi at 59-62, ‘In the present case, there is no consensus among the member states of the Council of Europe that passports should be available with an “X” marker, whether it is taken as signifying membership of a non-gendered category or of an unspecified gender. Nor is there any consensus, even among those member states which issue “X” passports, as to the circumstances in which they should be issued (whether, for example, they should be confined to individuals who are biologically intersex, or should be available to any person who identifies as non-gendered), or as to the nature of any evidence or procedure which may be required (whether, for example, a court order should be required, or any form of medical or other evidence). This was explained at para 16 above…Drawing these various considerations together, the courts below were right to conclude that the considerations relating to the appellant’s interest in being issued with an “X” passport were outweighed by the considerations relating to the public interest put forward by the Secretary of State. In that regard, the importance of a coherent approach across government to the question whether, and if so in what circumstances and on what basis, any gender categories beyond male and female should be recognised, is of particular importance. In addition, it is clear that the matter is one in relation to which the member states should be permitted a wide margin of appreciation, having regard to the absence of any consensus within the member states, the complexity and sensitivity of the issue, and the need for a balance to be struck between competing private and public interests’.
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.