Article 8 of the European Convention on Human Rights, 1950 that provides for the right to respect for private life imposes no obligation for the secretary of state to provide non-gendered persons with (x) marked passports
April 5, 2022
R (on the application of Elan-Cane) v Secretary of State for the Home Department
Supreme Court of the United Kingdom
 UKSC 56
Lord Reed, President & SCJ; Lord Lloyd-Jones, Lady Arden, Lord Sales & Lady Rose, SCJJ
December 15, 2021
Reported by Faith Wanjiku and Bonface Nyamweya
Constitutional Law- Bill of Rights- right to respect for private life- gender marking on the passports vis-a-vis non-gendered (x)marking on the passports- whether HMPO’s policy that disallowed a non-gendered (x) marking on the appellant’s passport breached the right to respect for private life- The European Convention on Human Rights, 1950 (the Convention), article 8.
Statutes-statutory interpretation- Article 8 of the Convention on the right to respect for private life-whether article 8 of the Convention taken in isolation or read together with article 14 imposed an obligation on a contracting state to include a non-gendered (x) marker to the passport holder’s gender as an alternative to the markers for male and female- The European Convention on Human Rights, 1950 (the Convention), articles 8, and 14.
Statutes-statutory interpretation- domestic law and practice- the margin of appreciation doctrine based on the need for judicial restraint on the part of the European court-the boundaries of compliance with the Convention rights- whether the act complained of was within the margin of appreciation allowed to the contracting state- whether article 8 of the Convention was violated in the ambit of the margin of appreciation- The European Convention on Human Rights, 1950 (the Convention), article 8, and 14.
Her Majesty’s Passport Office (HMPO) was an agency of the Home Office which dealt with the issuing of passports and related matters. It was HMPO’s policy that an applicant for a passport had to state on the application form whether their gender was male or female. If no gender was stated, the gender shown on the applicant’s supporting documents was selected. The passport was issued recording the passport–holder’s gender as male (M) or female (F). People who were transgender (which for the present purpose was defined to mean people who had acquired a gender, either male or female, which was different from the one recorded at birth) could obtain passports showing their acquired gender, on the production of a gender recognition certificate, a re–registered birth certificate, or a doctor’s letter.
The appellant was born female but identified as non–gendered. In 1995, the appellant contacted the UK Passport Authority, a predecessor of HMPO, to inquire whether it was possible for a passport to be issued without making a declaration of being male or female. The appellant was informed that it was not. The appellant accordingly applied for, and was issued with, a passport in which the gender was recorded as female. The appellant made similar inquiries in 2005 and in correspondence between 2010 and 2016, with similar results.
In 2014, HMPO completed an internal review of gender marking in passports. It noted that there had been very few requests for a non-gendered (X) marking, other than from the appellant, and that UK legislation, including discrimination and equality legislation, was based on the categorisation of all individuals as either male or female. It stated that recognising a third gender would put HMPO in isolation from the rest of government and society and would result in administrative costs of about £2m being incurred. The Government repeated those points when it considered the issue in 2016.
The appellant argued that the policy operated by HMPO contravened the right to respect for private life which was guaranteed by article 8 of the European Convention on Human Rights, 1950 (ECHR), either taken on its own or read together with the prohibition on discrimination in article 14. The High Court and the Court of Appeal rejected that argument. The appellant then appealed to the Supreme Court.
i. Whether HMPO’s policy that disallowed a non-gendered (X) marking on passports breached the UK’s obligations under article 8 of the European Convention on Human Rights, 1950 that provided for the right to respect for private life.
ii. Whether article 8 of the European Convention on Human Rights (the Convention), either taken in isolation or read together with article 14, imposed an obligation on a contracting state, when it issued passports, to respect the private lives of individuals who identified as non-gendered, by including a non-gendered (X) marker for the passport-holder’s gender, as an alternative to the markers for male and female.
iii. Whether such an obligation to issue passports marked (x) for non-gendered persons was imposed on the Home Secretary by the Human Rights Act 1998 by dint of article 8 (1) and (2) that provided for the right to respect for private and family life.
iv. What was the margin of appreciation doctrine?
Relevant provisions of the law
European Convention on Human Rights, 1950
Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 14 – Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
- HMPO continued to operate on the policy that an applicant for a passport had to state on the application form whether their gender was male or female. If no gender was stated, the gender shown on the applicant’s supporting documents was selected. The passport was issued recording the passport-holder’s gender as male (M) or female (F). Transgender people, in the sense of people who had acquired a different gender from the one recorded at birth, could obtain passports showing their acquired gender.
- The term transgender could be used in a wider sense, as it was by the intervener, Human Rights Watch, so as to include persons in the position of the appellant. The term was used in the judgment in the narrower sense in which it had been used in the European case law. So used, it described those individuals who had acquired a gender, either male or female, which was different from the one recorded at birth. Such persons were not non-gendered. In the United Kingdom, they could obtain a passport which conformed to their acquired gender on the production of a gender recognition certificate, a re-registered birth certificate showing their acquired gender, or a doctor’s letter confirming that their orientation to their acquired gender was likely to be permanent.
- In 2014, HMPO completed an internal review of gender marking in passports. The findings stated that there was no provision in the passport or on the passport application form for a person to transition from one gender to no gender or to the state that they did not identify in either gender. That was in line with the UK legislation that recognised only the genders, male and female.
- It noted further that the record of a person’s gender in their passport was used for a variety of purposes. One was to assist in verifying the identity of applicants for passports. The review explained that applicants for a passport had to also provide documents which recorded their gender, such as a birth or adoption certificate or a gender recognition certificate. When the passport application was considered by HMPO, a check was made that the gender shown on the application form matched the gender shown on the documents supplied, in order to prevent fraud. Interviews were carried out in cases of doubt, with gender being one of the details investigated. Checks, including checks relating to gender, could also be carried out with other Government departments.
- A second purpose was to assist in verifying the identity of passport users. Border staff checked that the gender recorded on the passport appeared to match the gender of the person using the passport. That was particularly valuable in the case of persons with names which could not be indicative of gender to a border officer who was unfamiliar with the traveller’s language or culture. Other bodies which were required to check identity, such as banks carrying out their obligations under money laundering legislation, and employers carrying out their duties under immigration legislation, could also use passports for that purpose (passports, like driving licences and birth certificates, being one of the types of document used as evidence of identity in the United Kingdom when such evidence was required).
- A third purpose was to enable officials to deal appropriately with members of the public in passport-related matters, for example by addressing them in appropriate terms, and by arranging for physical checks at borders to be carried out by officers of the appropriate gender, without their having to ask embarrassing questions about the passport-holder’s gender.
- The review acknowledged that two groups might be negatively affected by the current policy. One comprised individuals in the process of transitioning from one gender to the other (an issue which was subsequently resolved). The other comprised individuals who did not consider themselves to be either male or female. There had however been very few requests for an X provision, other than from the appellant. There were no calls for change from gender representative groups or civil liberties groups.
- The review noted that United Kingdom legislation, including discrimination and equality legislation, was based on the categorisation of all individuals as either male or female (and, if they were parents, as either mothers or fathers). There was no legislative provision for the recognition of individuals as non-gendered. There were no plans across government to introduce a third gender category. The norm across government was for gender to form a key part of the personal information gathered in respect of individuals. The review stated that HMPO could introduce recognition of a third gender but it would be in isolation from the rest of government and society. There were likely to be so few applications for such a passport, but there would be need to avoid issuing a document that was not recognised by other parts of government or wider UK society. It was noted that introducing an X gender marker in passports would also result in administrative costs of about £2m being incurred.
- At the time of the hearing of the appeal, there were agreed to be six contracting states of the Council of Europe which, in some circumstances, allowed passports to include markers other than male and female. Denmark (since 2014), Malta (since 2015), and Iceland (since 2021) permitted X markers in passports on application. The Netherlands (since 2018), Austria (since 2018) and Germany (since 2019) permit X to be entered on the passports of persons born with ambiguous sexual characteristics (intersex), subject in some cases to a court order or in others to the production of satisfactory evidence, such as an X birth certificate. The other 41 contracting states issued passports only with male or female markers.
- Other countries which permitted passports to bear an indicator other than male or female were New Zealand (since 2005), Australia (since 2011), India (since 2014), Nepal (since 2015), Pakistan (since 2017, in the case of transgender people) and Canada (since 2017). India, Nepal and Pakistan were states with a cultural history of treating hijras or khawaja sara (traditionally, but somewhat misleadingly, translated into English as eunuchs) as a distinct gender category.
- There was no judgment of the European Court of Human Rights which established a positive obligation to recognise a gender category other than male or female, and none which would require the respondent to issue passports without any indication of gender. Indeed, there did not appear to have been any case before the European court concerned with the application of the ECHR to individuals who identified as non-gendered. However, in the light of the court’s case law concerning transgender individuals, it was no longer in dispute between the parties that the appellant’s identification as non-gendered was an aspect of private life within the meaning of article 8 of ECHR.
- The question then arose whether the issue arising under article 8 should be analysed by asking whether article 8 imposed a positive obligation upon the respondent to provide the appellant with an X passport, in order to secure the appellant’s right to respect for private life, or whether the respondent’s unwillingness to do so constituted an unjustified interference with the appellant’s right to such respect. The European court had generally analysed cases concerned with gender identity from the perspective of whether the respondent state had failed to comply with its positive obligation to secure to the persons concerned their right to respect for private life under article 8. In the light of the body of case law, both parties approached the present appeal as one concerning the existence of a positive obligation.
- The principles applicable to assessing a state’s positive and negative obligations were similar. In both contexts regard had to be in relation to the fair balance that had to be struck between the competing interests of the individual and of the community as a whole, the aims in the second paragraph of article 8 being of certain relevance.
- In implementing their positive obligations under article 8 of ECHR, the states enjoyed a certain margin of appreciation. A number of factors had to be taken into account when determining the breadth of that margin. Where a particularly important facet of an individual’s existence or identity was at stake, the margin allowed to the state would be restricted. Where, however, there was no consensus within the member states of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raised sensitive moral or ethical issues, the margin would be wider. There would also usually be a wide margin if the state was required to strike a balance between competing private and public interests or ECHR rights.
- The appellant’s identification as non-gendered was an aspect of the appellant’s sense of self: that was why article 8 of ECHR was considered to be engaged. It was therefore understandable that the appellant wished to obtain legal recognition as a non-gendered individual. But that was not the issue in the proceedings, because regardless of the outcome of those proceedings, the appellant would continue to be treated as female for legal purposes. Those proceedings were concerned solely with HMPO’s current policy relating to the issuing of passports. The interest at stake in those proceedings, as far as the appellant was concerned, was therefore the appellant’s interest in obtaining an X passport.
- In the absence of identity cards in the United Kingdom, a passport was recognised as an identification document. In a witness statement, the appellant maintained that it was demeaning and distressing to use a passport as an identification document, for example when opening a bank account, when it did not reflect the appellant’s identification as a non-gendered person. It was also said that applicants for passports who identified as non-gendered were forced to make a false declaration of their identity. There was also said to be a risk of difficulties or harassment when a person who identified as non-gendered used a passport at borders, although the appellant had never personally been subject to harassment.
- In the United Kingdom the need to establish one’s identity arose only occasionally: most commonly, when accessing certain financial services, such as opening a bank account. In that regard, the United Kingdom differed from many other contracting states. Secondly, when the need to establish one’s identity arose, there was no obligation to use a passport for that purpose. As the appellant recognised, other documents, such as a birth certificate or a driving license, could be, and commonly were, used instead. It was not alleged in those proceedings that the use of those documents for that purpose involved any violation of article 8 of ECHR. A United Kingdom driving license bore no obvious marker of gender. A multi-digit number which appeared on the license included one digit which was an encoded reference to gender (which could be changed from one gender to the other on request), but the significance of the digit was not apparent on the face of the license, and was not something of which most people were aware.
- In relation to the process of applying for a passport, it was true that applicants, including those who identified as non-gendered, had to select either male or female on the application form, and make a declaration as to the accuracy of the information provided. But the purpose of providing that information was not to inform HMPO as to the applicants’ feelings about their sexual identity, and the applicants were not being forced to lie about those feelings. The form was concerned with the applicants’ gender as a biographical detail which could be used to confirm their identity by checking it against the birth, adoption or gender recognition certificates provided and other official records. It was therefore the gender recognised for legal purposes and recorded in those documents which was relevant. The gender recorded on the passport could also be used for the other purposes which were associated with the passport-holder’s appearance and physiology rather than their innermost thoughts. In relation to the use of the passport at borders, it was acknowledged that the appellant had no personal experience of harassment.
- The appellant was free to use any forename, and in fact used a name which was in use for both men and women. The appellant made no complaint about the law governing birth certificates. In relation to proof of identity, it had been explained that such evidence was not frequently required, and that the appellant was under no obligation to use a passport for that purpose.
- The National Health Service (NHS) did not recognise the applicant as being a non-gendered person: what it recognised was that the applicant was suffering from the medical condition of gender dysphoria, and it provided medical treatment to alleviate that condition. The fact that the Government, through its funding of the NHS, bore the cost of the appellant’s medical treatment did not logically entail that it should in addition bear the far greater costs which would be involved in introducing X passports or other disadvantages such as national security, incoherence in of the administrative and legal practices within the domestic system as to recognise a non-gendered category of individuals in the context of passports would be anomalous, in the context of United Kingdom law and administrative practice as there was no legislation on non-gendered persons.
- Imposition of positive obligations required contracting states to modify their laws and practices, and possibly (as in the present case) to incur public expenditure, in order to advance social policies which they could not wholly support, or which they could not regard as priorities, without the imposition of the obligation being supported by any democratic mandate or accountability. While not a conclusive objection, those characteristics of positive obligations indicated the importance of exercising caution before they were imposed. An important conceptual mechanism by which the European court exercised such caution was by interpreting and applying the ECHR in a way which allowed contracting states a margin of appreciation.
- The width of the margin of appreciation varied according to the circumstances. In that regard, two particularly important factors were, first, whether a particularly important facet of an individual’s existence or identity was at stake, and secondly, whether there was a consensus within the member states of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raised sensitive moral or ethical issues. In relation to the first of those issues, notwithstanding the centrality of a non-gendered identification to the appellant’s private life, it was difficult to accept that a particularly important facet of the appellant’s existence or identity was at stake in the present proceedings. That was because it was only the designation of the appellant’s gender in a passport which was in issue.
- In relation to the second issue, the importance of a consensus within the Council of Europe was readily understood. Courts, including the European Court, were expert in adjudication. They did not, on the other hand, possess the capacity, the resources, or the democratic credentials to be well-suited to social policy-making. When adjudication by the European court required it to consider questions of social policy, it accordingly found guidance in a consensus on the part of the contracting states, and was cautious before embarking on such policy-making in the absence of a consensus.
- In the present case, there was no consensus among the member states of the Council of Europe that passports should be available with an X marker, whether it was taken as signifying membership of a non-gendered category or of an unspecified gender. Nor was there any consensus, even among those member states which issued X passports, as to the circumstances in which they should be issued (whether, for example, they should be confined to individuals who were biologically intersex, or should be available to any person who identified as non-gendered), or as to the nature of any evidence or procedure which could be required (whether, for example, a court order should be required, or any form of medical or other evidence).
- 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 respondent. 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, was of particular importance. It was clear that the matter was 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.
- To hold that the appellant’s ECHR right to respect for private life required the respondent to issue the appellant with a passport reflecting the appellant’s identification as non-gendered would go well beyond the case law of the European court. It was open to domestic courts to develop the law in relation to ECHR rights beyond the limits of the Strasbourg case law, on the basis of the principles established in that law. They should not, however, go further than they could be confident that the European court would go.
- The nub of the complaint under article 14 of ECHR taken together with article 8 was that, whereas individuals who identified as male or female could obtain passports with markers which corresponded to that gendered identification, the appellant could not obtain a passport with a marker which corresponded to a non-gendered identification. That state of affairs was argued to constitute a difference in treatment, in relation to a matter falling within the ambit of article 8, which was unjustifiable: that was to say, either the difference in treatment did not pursue a legitimate aim, or there was not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.
- The answer to the question as to whether an act which did not violate the international law obligations of the United Kingdom under the ECHR could nevertheless be incompatible with a public authority’s obligations under the Human Rights Act (Act) depended upon a comparison between the content of the obligations imposed by the ECHR and the content of the obligations imposed by the Act. Since both instruments defined the obligations which they imposed by reference to the same texts, as would appear from an examination of the Act, the answer had to depend upon whether domestic courts could interpret those texts as having a different meaning in the context of the Act from the meaning which they had in the context of the ECHR.
- The margin of appreciation doctrine was a principle of interpretation of the ECHR, based on the need for judicial restraint on the part of the European court. By applying the doctrine, the European court set the boundaries of compliance with the ECHR rights correspondingly wide, and so allowed the contracting states a degree of latitude or discretion in relation to their domestic law and practice. The width or narrowness of that latitude could reflect a number of factors, such as whether there was a consensus among the contracting states in relation to a particular issue, whether the national authorities were better placed to make the relevant assessment, and the importance of the right affected. Where the margin of appreciation doctrine was applied in deciding whether there had been a violation of one of the substantive articles of the ECHR, the answer therefore depended upon whether the act complained of was within the margin of appreciation allowed to the contracting states.
- Where the European court applied the margin of appreciation doctrine so as to conclude that there had been no violation of the Convention, it did so by adopting a correspondingly restrained interpretation of the relevant article of the ECHR. For example, the concept of family life, within the meaning of article 8, was interpreted in 2001, having regard to the margin of appreciation, as not applying to the relationships of same-sex couples. The right to respect for private life, within the meaning of the same article, had been interpreted, on the basis of the margin of appreciation doctrine, as not conferring a right to an abortion or a right to assisted suicide.
- Where the European court decided that there had been no violation of the ECHR, applying the margin of appreciation doctrine, it remained open to the contracting state to recognise the right in issue under its domestic law, although it was under no obligation to do so by virtue of the ECHR. For example, it was open to the United Kingdom to recognise a right to assisted suicide, although there was no such right under the ECHR. The European Court evidently had no role in deciding which institution in the United Kingdom should determine whether there should be such a right. That question depended on the United Kingdom’s constitution, under which legislative power was the preserve of the legislature, and the courts’ role in law-making was confined to the development of the common law.
- The ECHR rights which the Act introduced into the domestic law of the United Kingdom were thus defined as the rights set out in the relevant articles of the ECHR and its protocols, as those instruments had effect for the time being in relation to the United Kingdom. The ECHR and its protocols had effect in relation to the United Kingdom by imposing obligations on the United Kingdom under international law to act compatibly with the rights which they guaranteed. The Act therefore defined the ECHR rights to which it gave effect in domestic law as the rights which were enforceable against the United Kingdom under international law. The rights given effect in domestic law had the same content as those which were given effect under international law, although they were enforceable before domestic courts rather than the European court, and against public authorities rather than the United Kingdom as a state. Since the rights had the same content at the domestic level as at the international level, the relevant articles of the ECHR should in principle receive the same interpretation in both contexts. That was not to say that domestic courts were bound to follow every decision of the European court, but there should in principle be an alignment between interpretation at the international and domestic levels.
- There was nothing to stop Parliament from legislating to protect human rights to a greater extent than the Convention and its jurisprudence currently required. Nor was there anything to prevent the courts from developing the common law in that direction. Nevertheless, she continued:
- If an Act of the United Kingdom Parliament was prima facie not compatible with the ECHR rights, Parliament had given courts the duty, if possible, to interpret it compatibly with those rights (section 3(1) of the Act); and if that was not possible, the power to declare it incompatible; section 4. When Parliament gave out those novel and important powers, it was not giving out the power to leap ahead of Strasbourg in the interpretation of the Convention rights nor did it believe that it was expecting the courts to lag behind. The purpose of a declaration of incompatibility was to warn Government and Parliament that the United Kingdom was in breach of its international obligations. It was then for them to decide what, if anything, to do about it. The obligations created by the Act had the same content as those imposed at the international level by the Convention.
- Parliament’s intention to implement domestically the rights which were available under the ECHR at the European level did not mean that domestic courts were bound to follow and apply the jurisprudence of the European court slavishly or unquestioningly: on the contrary, they could and did decline to follow Strasbourg judgments where there was a good reason to do so. Nor were domestic courts prevented from developing the law in relation to Convention rights beyond the limits of the European case law. The protection of Convention rights under the Act could go beyond the situations previously considered by the European court, where the principles established by that court enabled such a step to be taken. In those ways, domestic courts could and did engage in dialogue with the European court and influenced the development of its case law.
- Applying the principles established in the European case law, the respondent was under no obligation, by virtue of article 8 of the ECHR, considered either alone or together with article 14, to provide the appellant with an X passport. The ECHR imposed no such obligation, at least at the present time. There was no reason why that assessment of the position at the European level should not be followed at the domestic level in the application of the Human Rights Act.
Relevance to Kenya’s legal system
Article 27 (1) of the Constitution of Kenya, 2010, opines that every person is equal before the law and has the right to equal protection and equal benefit of the law. Sub-article 4 prohibits direct or indirect discrimination on any basis including sex. Article 28 evinces the inherent human dignity in every person and the right to have this dignity respected protected. Article 56 talks about the representation of minorities and marginalised groups in the society.
In EG & seven others v Attorney General; DKM & nine others 2016 eKLR, the petitioners inter alia sought an order directing the state to develop policies and adopt practices prohibiting discrimination on grounds of sexual orientation and gender identity or expression in the health sector. The High Court however established that the petitions were not merited and declined the reliefs sought and dismissed the consolidated petitions.
These provisions show that the UK case is significant in developing the Kenyan jurisprudence in emerging gender issues.