(CN) — Cautious not to put Her Majesty’s Passport Office out of step with the rest of U.K. society, an appeals court refused Tuesday to help a sexagenarian Briton obtain a gender-neutral passport.
"It is bad news for everyone who cannot obtain a passport without the requirement imposed by the UK Government that they should collude in their own social invisibility," said Christie Elan-Cane, the petitioner who brought the case, in a statement.
Elan-Cane, who identifies as having no gender, uses the pronouns “per/per/perself,” and since 1995 has been fighting for the right to check something other than “male” or “female” when applying for a passport.
Lady Justice Eleanor King, Lord Justice Stephen Irwin and Lord Justice Launcelot Henderson heard the case in December and ruled Tuesday that passport limitations had no bearing on Elan-Cane’s Article 8 right to live in a social environment and have relationships with other people.
King underscored that the option of checking “X” on a passport is only “one part of a bigger picture,” and one that will “require a coherent, structured approach across all the areas where the issue of non-binary gender arises.”
Holding that the passport policy does not infringe Elan-Cane’s rights, King emphasized that the momentum for gender-identity issues cannot be confused with “a consensus in relation to either the broad and indeterminate issue of the recognition of non-binary people, or the narrow and precise issue of the use of ‘X’ markers on passports which is before this court.”
The line between trend and consensus, however, is not immutable.
“The time may come when the importance of these issues and the Article 8 rights of nonbinary people will mean that the fair balance has shifted and that, as in Goodwin, the margin of appreciation as to recognition of a positive obligation will be exhausted,” King wrote
King counted 11 countries, five of them in Europe, that grant citizens the right to mark their gender as “X.”
Elan-Cane, who turns 61 this year, was granted the right to challenge the U.K.’s policy in 2017. Per lawyers argued that the passport policy impinged Elan-Cane’s right to privacy and protection against gender and sex discrimination.
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