Elan-Cane, R (on the application of) v Secretary of State for the Home Department & Anor

Facts

The claimant, Christie Elan-Cane, aged 60, was registered female at birth but grew increasingly detached from that assigned gender, undergoing a bi-lateral mastectomy in 1989 and a total hysterectomy in 1991 before settling on a "non-gendered" identity. From 1995 onwards the claimant pressed the body responsible for issuing passports to allow a passport to be issued without a declaration of being male or female, noting that the International Civil Aviation Organisation's standard for machine readable travel documents permits "M", "F" or "X" for unspecified in the sex field, and that a number of States, among them New Zealand, Australia, Denmark, Malta, India and Nepal, issue "X" passports. The Identity and Passport Service, and later Her Majesty's Passport Office, maintained the policy that an applicant must select male or female and that a passport will bear only an "M" or "F" indicator, a position confirmed in its 2014 internal review of gender marking in passports and in the Government's July 2016 response to the House of Commons Women and Equalities Committee report on Transgender Equality. Following pre-action correspondence, the claimant brought judicial review contending the policy breached Articles 8 and 14 of the European Convention on Human Rights, was irrational, and rested on irrelevant considerations. Permission was refused on paper by Warby J but granted on renewal by Gilbart J; Human Rights Watch intervened by written submissions.