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Legal

The Supreme Court rejects non-gendered passports

By allowing a third category, it would mean that the passport would indicate the holder’s gender identity rather than their sex … changing an objective descriptor into a mere subjective label.

A welcome judgement from the UK’s highest court

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.


Debbie Hayton

* This article was first published by Unherd on 17 December 2021: The Supreme Court rejects non-gendered passports.

By Debbie Hayton

Physics teacher and trade unionist.

2 replies on “The Supreme Court rejects non-gendered passports”

That’s good news. I’ll point out a couple of minor issues with the post: the person in the photo isn’t identified (although it’s a fair guess who it is), and the quote of the Supreme Court is missing a bit, which makes it less understandable. The full quote is, ‘The appellant’s interest in being issued with an “X” passport is outweighed by considerations relating to the public interest put forward by the Secretary of State, including 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.’

Thanks for posting.
John

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Frankly amazing that the Supreme Court won’t bend. Everyone else seems to have capitulated. So sad that people have stopped differentiating between gender and sex. I’d suggest that for those who can’t decide, their passports should show both.

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