‘Inherently discriminatory’ or common sense? Campaigner loses appeal to make ‘X’ a legal ‘gender-neutral’ option on UK passports

A UK Court of Appeal ruled that people cannot simply leave their biological gender off their passports after a campaigner argued that those who identify as ‘non-binary’ should be allowed to use letter ‘X’ in place of ‘F’ or ‘M.’

Christie Elan-Cane brought the challenge to the Court of Appeal as a human rights issue, arguing that the UK’s passport application process was “inherently discriminatory” because it requires people to indicate whether they are in fact biologically male or female. 

Lawyers argued that this requirement breaches the right to respect for a person’s private life, as well as the right not to be discriminated against on the basis of gender under the European Convention on Human Rights.

Elan-Cane, who has been campaigning for legal recognition for non-binary identifying people for more than two decades, was unsuccessful, as the court upheld a previous High Court ruling that the refusal to offer ‘X’ passports was not unlawful.

The long-time campaigner, who is referred to as ‘Mx Elan-Cane’ in some British media and who personally identifies as “per” and “perself,” said lawyers would now seek to have the case heard before the Supreme Court. 

“Legitimate identity is a fundamental human right but non-gendered people are treated as though we have no rights,” Elan-Cane said, adding that it is “unacceptable” for a person who identifies as neither “to declare an inappropriate gender” in order to obtain a passport.

The notion of ‘gender neutral’ passports is not unheard of, however. Canada and the Netherlands already offer citizens the option of an ‘X’ designation on legal identity documents — all in the spirit of diversity.

Elan-Cane said the decision was “devastating” and that the current laws require gender-fluid people to “collude” with the powers that be “in their own social invisibility.”

Justice Eleanor King was not convinced, however. 

While she acknowledged that there “can be little more central to a citizen’s private life than gender,” she ruled that there was “no positive obligation on the state to provide an ‘X’ marker” to ensure the right of the appellant to respect for private life.

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