Carys Moseley looks at the UK government's case for rejecting gender-neutral passports, which recently won in the High Court, and finds that despite coming to the right conclusion the submission as a whole suggested that elements within the government are still open to the idea. This is despite the Home Office admitting that it would be a global security problem.
Last week the High Court rejected a challengeby Christie Elan-Cane, a person who was born female but who identifies as ‘non-gendered’, to the lawfulness of HM Passport Office’s policy to require male or female gender on UK passports. Elan-Cane wanted the right to have a passport marked ‘X’ instead of M (male) or F (female). Justice Jeremy Barker ruled that current policy was not unlawful.
Kate Gallafent, representing Elan-Cane, argued that the policy breached the claimant’s right to private life under Article 8 of the European Convention of Human Rightsand the right to non-discrimination on grounds of sex or gender under Article 14.
Elan-Cane first approached the government in 2005 when plans for ID cards were being floated. It was discovered that the International Civil Aviation Organisation, which is the UN agency responsible for international travel specifications, permitted member countries to allow X instead of M or F. At the time only India and Malaysia allowed this.
The Identity and Passport Service suggested gender-neutral passports
The Identity and Passport Service wrote to Elan-Cane on 29 September 2010 saying that they would ‘work with the Government Equalities Office and the transgender community to consider how we can move this important issue forward.’ No mention was made of the need for a public consultation on the matter.
The IPS also promised to discuss the matter further with the ICAO, and investigate ‘other options including the removal of gender identifiers from passports but will need to consider any potential security implications of such a change.’
On 3 February 2014 HM Passport Office, now part of the Home Office, published a report including results of an internal review of the matter. This review was quoted extensively in last week’s judgment. However the names and views of key stakeholders consulted by HM Passport Office were not revealed in court. As the review is available on the Parliament website we know who they are. It turns out that this makes a major difference to the significance of this case.
Home Office-based trans staff group disregarded security implications
The review listed the stakeholders which HM Passport Office consulted. They included a: gender, the transgender staff network of the civil service, which favoured removing gender markers, Christie Elan-Cane and the transgender campaign group GIRES. GIRES dismissed security concerns in one sentence as ‘an excuse’ that was ‘unfounded...and easily demonstrated as such’ (page 14 of the review) whilst a: gender did not even give any evidence of consideration for UK border security concerns (page 9 of the review).
This is significant because a: gender was formed in 2003 as the Gender Recognition Act was being prepared, has from its inception been hosted by the Home Office and aims to advise government staff and department on transgender policy issues and relevant legislation. It really beggars belief that an organisation based in the Home Office did not bother considering the security implications of changing gender markers on passports. Should the government still court this group’s advice on transgender policy?
Government response right but inconsistent
The government mounted an eminently sensible and ultimately successful defence against the claim under Article 8 of the ECHR based on the need to maintain an administratively coherent system of information about citizens, maintaining security, combating identity theft and fraud, and ensuring security at national borders. However, much was also made of the claimant’s right to respect for private life as a non-gendered person, noting that the Government Equalities Officerecognises many gender identities (male, female, neither, both, fluid). The result is an inconsistent approach which is bound to be contested as leading to inequality.
Worryingly, it seems that the ministerial team working for the previous Home Secretary Amber Rudd had not formed a view for or against gender-neutral passports, unlike her predecessors. This we can infer from the second witness statement by Kate O’Neil dated 20 March 2018.
Border security worldwide at risk from gender-neutral passports
In a witness statement on behalf of the Home Office Timothy Woodhouse made the following claim (paragraph 80 of the judgment):
‘biometric identification made the need for gender identification of limited value in its own right, [but] the effectiveness of border security practices around the world would be reduced if sex/gender markings were removed.’
Nevertheless, the UK government ‘recommended that the ICAO carry out a wider consultation with member states.’ The truth is there was absolutely no need for this, as the vast majority of countries do not have gender-neutral passports, and indeed several countries are named in the judgment as explicitly ruling them out. Several of those which do have X-passports only allow them for people with physiological intersex conditions.
The UK government is still open to gender-neutral passports
The judgment goes on to report that the Passport Office sent a questionnaire to 165 UN member states on 9 October 2017 to look into how many used X markers on passports. The Home Office representative Timothy Woodhouse told the court that questionnaire responses would inform a further full review on the topic.
It is truly extraordinary that the government has taken such a step without consulting British citizens on the matter. Did their views count for nothing? At the same time such a move makes sense the government’s frequent boast of being an international leader in transgender rights.
It also fits with statements in the judgment citing the Home Office, as well as the judge’s own views, that the government would and should continue to consider the request for gender-neutral passports ‘in alignment with societal developments’.
The UK government wants to crack down on ‘conversion therapies’ for gender identity
It must be said plainly here that the government is creating the problem it claims to want to solve. Earlier this year it was the Home Office that was reported to be considering a ban on so-called ‘conversion therapies’, which given its departmental remit would include the option of criminalisation. In addition it is wider elements of government that have been pushing the ‘social development’ of alternative non-binary gender identities, in endorsing theMemorandum of Understanding against ‘conversion therapies’ for sexual orientation and gender identity last October.
The Memorandum prohibits attempts at changing gender identity. This is code for therapy aimed at helping a client become more comfortable in their biological sex. This is directly relevant to understanding non-gendered or gender-neutral identification, because it is based on refusing to be known as a member of one’s sex. Effectively the government is promoting non-binary identities among young people. They in turn are bound to make new demands for gender-neutral passports!
Disappointment of trans groups with the ruling
The Home Office has recently tabled the Counter-Terrorism and Border Security Billin the House of Commons, and it is currently at committee stage. Ostensibly the Bill was introduced in response to the case of the poisoning of the two Russian spies in Salisbury. The Bill sets out new Notification Requirements for terrorist offenders, in proposing amendments to the ments for terrorist offenders, in proposing amendments to theCounter Terrorism Act 2008. These discuss passports as forms of identification. Now is not the time to be fantasising about making them gender-neutral.
The judgment reveals that all transgender campaign groups have long made it clear to the government their desire for gender-neutral passports. Indeed Stonewall was disappointedwith the ruling. This means that ALL transgender rights groups in the United Kingdom go against the requirements not only of the government of the United Kingdom but of the vast majority of the world’s countries, including nearly all UN member states, for border security. The same goes for the international NGOs involved – Human Rights Watch, who filed a third party intervention, Transgender Europe(part funded by the European Union), whose director intervened, and ILGA.
In light of all this it is time for a belated spring clean in the government to purge all elements that would continue to push for gender-neutral passports. The demand for them is a global security risk and would undoubtedly make the UK a serious nuisance as it tries to get along with most of the world’s countries.