by Debbie Hayton
Friday, 17
December 2021
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11:18

The Supreme Court rejects non-gendered passports

A welcome judgement from the UK's highest court
by Debbie Hayton
Christie Elan-Cane

British passports all carry a sex marker, F (female) or M (male). Until recently this was uncontroversial. Apart from some transsexuals who have been through a process of gender reassignment, it indicates biological sex. There are two sexes and hence two markers.

But that is not good enough for Christie Elan-Cane, a campaigner who was born female but identifies as “non-gendered.” In 1995, Elan-Cane contacted the UK Passport Authority to inquire whether it was possible for a passport to be issued without making a declaration of being male or female. The answer was “no”.

The case has rumbled on for years with both the High Court and the Court of Appeal turning down Elan-Cane’s case. And, as of this week, the Supreme Court has also dismissed it:

The importance of maintaining a coherent approach across government to the question of whether, and if so in what circumstances, any gender categories beyond male and female should be recognised.
- Supreme Court

That is a welcome judgement, but its importance goes far beyond just passports. Sex — and I use that word deliberately — is fundamental to our species. It is the reason we are here. Sadly, it also leads to the oppression and objectification of women. Gender, on the other hand, is far less well-defined. Sometimes it is synonymous with sex, but it can also allude to gender identity, a nebulous concept that can be likened to a gendered soul.

In their submission to the court, Fair Play for Women, argued that:

In order to secure women’s sex-based rights and protections, UK law and systems of governance must continue to distinguish birth, or legal sex from self-selected gender identity.
- Fair Play for Women

While there can be any number of different gender identities — the list is open-ended — there are only two sexes. It is binary.  So, by allowing a third category (some foreign passport authorities issue passports with an X marker), it would mean that the passport would indicate the holder’s gender identity rather than their sex. Indeed, the marker would mean whatever the holder wished it to mean, changing an objective descriptor into a mere subjective label. That should concern everybody.

This Supreme Court judgement, therefore, goes beyond the rights of Elan-Cane and others who might identify as non-binary. But even for them, the potential benefits are uncertain. While they might find some satisfaction in removing their sex from their records, they cannot change the way that others think about them. Our bodies are not mere perambulating devices; we are proficient at identifying the sex of other people’s bodies. To deny that is to deny reality.

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George Glashan
George Glashan
7 months ago

in practice, for the countries that allow a passport to have X for sex category, if a person with an X on their passport flew to say Pakistan, could Pakistan border control refuse them entry as their passport is not compatible with Pakistan law?

Debbie Hayton
Debbie Hayton
7 months ago
Reply to  George Glashan

Interesting question! I suspect, though, that you would need to indicate M or F when applying for a visa.

Galeti Tavas
Galeti Tavas
7 months ago
Reply to  George Glashan

No matter what sex your passport says wile in Pakistan, you will use the sex appropriate places, if they are sex-segregated, based on your physical reality, or else. My guess is no bearded people use the women’s changing rooms in Dubai either.

Matthew Powell
Matthew Powell
7 months ago

A welcome judgement indeed but one that only highlights the excessive power the courts hold. It should not be for judges to effectively create new laws, that’s what we have democracy for. The fact that the issue could be pursued through the courts at all is part of the problem.

Chris Wheatley
Chris Wheatley
7 months ago
Reply to  Matthew Powell

This is very true. In fact, the politicos are just ducking the issue by allowing the courts to deal with it. I suspect that many things would be handled in the same way – immigration, teaching in universities including funding from China..

George Glashan
George Glashan
7 months ago
Reply to  Matthew Powell

I wonder how long this decision will stand, younger generations who have grown up with the internet always being around for them have an expectation of changing your online profile instantly and as that generation becomes the majority, the cultural norm will be that interacting with government should be more similar to how people interact with social media platforms.

Julia H
Julia H
7 months ago
Reply to  Matthew Powell

It’s difficult, isn’t it? On the one hand I agree. Various cases of people asking for the right to assisted dying have been batted back by the courts saying that such an important issue must be dealt with by primary legislation not a generous interpretation of human rights laws. On the other hand there is a real danger that a coalition of Labour and LibDems might introduce legislation that erases sex categories and all that stands between women and this nonsense is sensible judges.

rodney foy
rodney foy
7 months ago
Reply to  Matthew Powell

Please correct me if I’m wrong, but I thought that the government and elected parliament make the laws, and the courts make sure that the government follows those laws. If the government disagrees with the courts, they can change the laws, if parliament agrees.

The ruling makes sense to me. A passport is about identifying a person. Biological sex is normally clear, and helps identification. Whether someone thinks they’re in the wrong body is irrelevant

Last edited 7 months ago by rodney foy
Andrew Fisher
Andrew Fisher
7 months ago
Reply to  Matthew Powell

They are not creating a new law but ruling on a case set before them. Unless we abolish Courts or further restrict access to them, they have to interpret the law as they see it. Parliament should make clear laws if it disagrees with their interpretation, such as on the incorporation of the ECHR into British law, it should explicitly legislate on that basis.

Andrew D
Andrew D
7 months ago

Debbie, may I ask what your passport says? You don’t have to answer of course

Debbie Hayton
Debbie Hayton
7 months ago
Reply to  Andrew D

My passport – as issued in 2013 – has an F marker.

Galeti Tavas
Galeti Tavas
7 months ago
Reply to  Debbie Hayton

Debbie, so good of you to come on and talk to posters. I often wonder what the writers think of allowing Posts BTL. Is it widely regarded as a bad thing? And the publications, do they dislike having to have comments open as here – cannot be fun for the writers. Must be costs from several directions.

I almost always see two kinds of BTL Posting in other publications – one is the ‘Comments Closed’, and the other is such a load of stupid stuff that it is just noise, But – with the up and down arrows gives an excellent poll of the mood of the readership. Unherd seems to have actual posts – which is unusual. And the up and down arrows are useful in getting the mood. I do sometimes wonder if the Unherd set out to be what it has become, or if the readership, by their posts and votes, helped set the direction it now takes.

Last edited 7 months ago by Galeti Tavas
Andrew D
Andrew D
7 months ago
Reply to  Debbie Hayton

Thank you for replying Debbie. I don’t want to be awkward or unpleasant, but I find your answer a little difficult to square with your arguments that there are two sexes, and that sex is immutable. Am I missing something?

Julia H
Julia H
7 months ago
Reply to  Andrew D

It’s not for me to answer on Debbie’s behalf and I’m not intending to but my understanding is that those with a GRC are entitled to be identified as the opposite sex for legal purposes, as distinct from entitled to claim they are the opposite sex as a matter of biological reality.

Drahcir Nevarc
Drahcir Nevarc
7 months ago
Reply to  Julia H

Good answer to a good question.

Lesley van Reenen
Lesley van Reenen
7 months ago
Reply to  Andrew D

It is an indication that gender reassignment should be a lengthy considered formal process and not simply a matter of waking up in the morning and identifying as female. And even worse, identifying as different things according to mood swings. Or indeed more sinister things, like identifying as a certain sex based on a desired outcome e.g. a male prisoner wanting access to a female jail.

Drahcir Nevarc
Drahcir Nevarc
7 months ago

Very good answer to a good question.

William Shaw
William Shaw
7 months ago

Why was this a matter for the Supreme Court?
And how does a decision by the UK Supreme Court square with the nonsense going on in Sturgeon’s Scotland?

Last edited 7 months ago by William Shaw
Karl Francis
Karl Francis
7 months ago

Excellent piece Debbie, thankyou.