Thread by @SexMattersOrg

Sex Matters will be live tweeting the #XPassports Elan Cane case today which is at the Supreme Court.

Starting at 11 am

Counsel for the appelant: The appelant transitioned to non-gendered by two surgeries.
Secretary of state says Gender identity is inate sense of gender - male female both neither or fluid

HMPO has undertaken internal review identified 8 concerns for X passports . None of which are now relied on . Says passport will only be issued for M or F under sex /gender

These proceedings started 4 years ago following WESC recommendation to follow Australia and allow X passports

Question of whether Article 8 covers people only with M or F gender.
Article 14 - not to be discriminated against based on sex and or gender

At first instance Q of whether article 8 a positive or negative obligation. Fair balance would be the same
Court of appeal - found no interference with rights, or if they were it was justified

It is unsurprising that the results were the same either way - whether considering a positive or negative obligation
(case: Hamelinen (sp) - case on gender) - principles are similar for positive or negative obligation

(This is Kate Gallafent QC- Blackstone Chambers for the appellant : sound was off at the beginning!) states have wider margin of appreciation on positive and negative obligations.

Goodwin - the concept of "respect is not clear cut"

Case of X&Y in Romania - positive and negative obligations are comparable.

Hamelinen case para 66 - factors considered relevant to positive - discordance between social appearance and law

Q: Is the alleged obligation narrow or broad, or the extent of the burden on the state.
Hamellinen - the obligation on states to amend data for a post-operative transsexual had already been established by Goodwin

The Finnish case was about marriage and legal gender recognition - the precondition to end the marriage or convert it to a civil partnership.

The SS says the question of recognition should not be elided with implementation - recognition is the first step - a positive step to accord status- as in Goodwin . Implementation is a higher level of specificity - changing a passport or birth certificate

Even when Strasbourg recognises that a right exists, the margin of appreciation on the means of achieving that right lays with the State to decide.

But the SS has never agreed that there is a obligation to recognise a non-gendered person, and there were no rights being breached.

Mentions Rees (transgender case before Goodwin) - recognition of a right or status. Rees also complained about birth certificate. Both were recognition issues. Not implementation

Judge asks what this is all for?

Gallafent - a person who identifies as neither male or female?

Judge - so just self identification?

Gallafent points them to Human Rights Campaigns
Passport says "sex" but it is recognised as referring equally to gender. Countries have provided it to people who identify as neither M or F

Judge says - does the appellant refuse sex. Sex is identified at or before birth . Gender is self-identified.

Gallafent - ICAO

Judge - why are we concerned with guidance about machine readable

Gallafent - everyone needs a machine readable passport

Judge - where it says "unspecified are cis gendered people also allowed to put an X or only trans gendered?

Gallafent - it depends on the rules in the country. If you neither identify as an M or an F then you should have X

A country could say a "cis" person could have X or they could say there needs to be identification or a letter from the government

Judge: the government would have to define the X's ?

Gallafent: the govt could set out a system of rules to decide who gets an X passport

Judge: we want to know exactly what your target involves?

Gallafent: First allowing the X and then the affected class, people who are "non-gendered, non binary and intersex persons, people whose identity is neither M or F

This is consistent with what the SS has said about gender identity - it can be non binary or fluid etc...

Refers to the passport application form - online application form - at the foot of the page, "gender". On the application form itself is not defined as sex but gender

Judge: and if you click on help on this?
Gallafent: I don't think it tells you anything relevant. It wasn't relevant, we have forgotten it (!)

Gallafent: Moving on to factors - the first concerns the importance of the issues at stake, fundamental issue of gender identity is at the heart of a person's article 8 rights. (Case: Hammelinen)

Although passports can be used as ID, so too can birth certificates.

Passport is the only document that allows people to travel abroad. It could be used for ID purposes.

In Rees P 20 - a passport is a normal type of ID document used in the UK

The use of birth certificates as an identity document is discouraged (cases: Horsham & Goodwin). We say that it is right that passports are used as ID documents. Birth certificates are not used as evidence of identity

Re passports vs birth certificates - is the particular facet concerning an important issue at stake concerning fundamental values.

Case of Ms B from France - the court noted surgery to remove any sex specific characteristics.

Judge: But you are not asking us to confine our judgment to a person with those specific characteristics?

Gallafent: No, but it would be surprising for the government to adopt a position that surgery is required .

This appellant has had surgery and demonstrated manifest determination.

The Principle from B and France - the appellant whose gender identity engages Article 8 cannot use a passport etc... without misrepresenting their gender identity

The dysphoric effect "making a false declaration on application" (false in terms of gender identity) and then applying it.

Judge: Could the government say we define sex in a certain way and not allow a person a to self define?

G: It would be surprising. Article 8 allows a person to identify as non gendered. That person considers M or F to be wholely false.

Judge: Q of whether it does involve misrepresentation as it asks for sex at birth?

G: No because a transsexual can self define. So it cannot be about sex "assigned at birth". No surgery is required.

Trans people have always been able to change from M to F. The government has had no difficultly with those trans persons.

Judge: they don't self certify ? They require a medical certificate?

G: I will go through it...

Goodwin set out the govts position in 2002. Recognised it would be against Article 8 - reference to B in France - having to identify as the "wrong sex".

The govt denied that the applicant faced such detriments as had been able to obtain new passport and driving licence. Govt relied on the ability of a trans person to obtain ID with "sexual identity" to mitigate the detriment

It was done with the minimum of authority.

Judge: at some point are you going to give me the simple fact i asked for - is it based on self certification or some objective basis?

In Rees it is a said to be a minimum of formality

Judge: giving us the judgements isn't very helpful "legal recognition of a transsexual's new sexual identification - what does this mean - not everyone who identifies is in the same position"

G: A person's rights are equally protected under Article 8 - the right of post operative transsexuals, non operative transsexuals and non-gendered persons are the same.

G: In answer to your question about the current process ... Guidance from HMPO - "applying for your passport" in an acquired gender, no surgery required.

Judge: GRC is a statutory certificate under the legislation dealing with gender reassignment?

G: Yes that is right

[Comment: Judge does not know what a GRC is - seems to assume it requires surgery?]

G: use of "gender" rather than sex in the application documents

What has never been required is surgery or a birth certificate showing an acquired gender.

The significance of passports - government relied on this for why there shouldn't be full recognition in terms of civil status.

If you give misleading information in applying for a passport you could be prosecuted.

It is a criminal offence to make a false statement to get a passport

The point is made by the SS - the relevance and significant to the individual is clear - it was a positive factor that a person was able to have a passport in their acquired gender.

SS says there is no disadvantage in not being able to have an X passport.

We say that it is a reason for the case - the person is required to reveal sensitive personal information (as in B in France) - govt accepted that there could be such a detrimental impact in Rees etc..

The fact that it does not concern pensions, employment etc.. is no reason against the case for issuance of X passport -- the detriment is just about information.

Key issue is discordance between the social reality and the law - refers to Goodwin again - impact on the individual - serious interference with private life - stress and alienation experienced by a post operative transsexual - who may experience vulnerability, humiliation

The NHS recognises gender dysphoria and has carried out assignment (or non-assignment) by surgery.

Strassbourg emphasises coherence of domestic systems. Why would a state authorise treatment and surgery and not recognise the legal implications ?

The state has assisted in the person having no sex specific characteristics - but illogicality of the person not able to obtain documents that recognise this.

Disconnect between the state offering something and then not following through in law.

Those are the factors - the interest at stake is important, a fundamental value, an important aspect of the person's life.

Judge: by saying Art 8 is engaged - there is recognition that the status of being 'non gender' is a fundamental fact of a person's identity.

Lady Rose: Then there are a whole number of things that the state might do - surgery? allowing an X marker? there may be other things that are trivial.

The rights arising from Art 8 are a bundle of rights - if not an inconvenience, or giving rise to humiliation?

Gallifent: a change of name is trivial, but if it relates to "gender identity" then it goes to a fundamental aspect of a person's identity.

SS says a passport is not important enough.

Lady Rose asking at what stage are we considering whether it is important or enough?

G: there has to be something that it is balanced against on the other side.

In this case it weighs heavily on the interests of the trans person

Lord Reed: A question about pension entitlement, or what prison to send this person to, searches at airports would be more important. You are confining your argument to passports. You would be content to leave other issues to one side?

G: yes i would. we are not seeking recognition in the Goodwin sense. The impacts on the state are negligible.

There is a greater margin for the state in other cases.

We don't say there is anything different in our case - a limited challenge. There may be other issues.

Difficult questions always arise, even when the question is full legal recognition.

We are only asking for passports. Other arguments are for another day.

Lady Arden: it may have a domino effect. So the court can't confine itself to this.

G: the appellant would be delighted with that, but that is not how the law works.

One would have to look at those questions separately

There may be different arguments in different cases, so no reason not to find the positive obligation in this cases.

Arden: that is why we have to consider the implications

G: No - it is just about passports. There is no link between passports and any other aspect of law

We say that the state should not be allowed to consider this in the round. The court should find a positive obligation in this case.

Rose: so what does full legal recognition mean?

G: there has been a recognition in Art 8 of the rights of a "non gendered identity"

This is not Goodwin. This is feasible and appropriate to constrain the challenge to a particular part of a person's life.

X stands for non-specified - it does not stand for non-gendered, non-binary, gender fluid etc...

Lord Reed: but you told us that this case also relates to people who are non-binary, intersex etc..

G: that is my case

The SS may make a distinction between gender fluid, non binary, non gendered etc... under gender identity

All of those people are covered by Art 8, but the SS could decide to exclude some people in those categories, then that would be open to challenge.

Why would the state provide surgery and then not follow through with that.

Lord Sales: recognition in passport will then be the fulcrum for wider changes?

G: it could, but it is "unspecified" not recognition of gender ID

And as in Goodwin what does "for all purposes" mean. In Hamellinen they did not accept that for all purposes did not require change in marriage law, because there was already a civil partnership.

G: SS is talking about impact on the state - impact on the birth register system in Goodwin - the consequences of the changing the system - a burden on the state.

It is not concerned with the coherence of other parts of government policy.

Govt says you cant change a birth certificate as a it is a historical record.

The court disagreed.

Interference with the rights of others - inability to access the birth register e.g. information or life insurance companies.

When a third party right is involved then it goes to the burden on the state - e.g. an insurance company unable to make the right premium.

But administrative coherence is not in general a consideration (!)

Judge: Why do you focus only on passport?
G: it does not require legislation. there is no question that the policy would be complication. there is no need for parliamentary time or consultation.
The appellant shouldn't be criticised for not bringing a wider claim.

AP Garcon case - in relation to civil status documents in France. -there was a requirement to demonstrate an irreversible change in appearance (... sterility).

Could not be justified by the case that people would be able to change their civil status on a whim

The refusal had been guided by the inalienability of civil status - the need for reliability, consistency and certainty

It is not administrative coherence is a legitimate aim.

We say this is part of an implementation question - here it was "gender identity disorder"

Big question she is addressing: Is administrative coherence a legitimate aim?

Now looking at Freddie McConnell case re: "use of "mother " on a birth certificate by a transgender male" (her words...)

[Wondering if the judges are following this? - what sex Freddie is]

The right that the Court of Appeal is concerned with is the rights of others - the child in this case.

Administrative coherence is not a legitimate aim in the McConnell case

Can the interests of the state could be based on administrative coherence?

Legitimate aims in Article 8 are exhaustive and restrictive

(see case of YY in Turkey)

Here are the legitimate aims....

G: Administrative coherence is not a legitimate aim. You have to view those aims as exhaustive and restricted.

If the SS is right that administrative coherence is a legitimate aim it would skew the difference between a positive obligation or a negative obligation.

G: Existing absence of coherence.

If a trans person can obtain a passport based simply on a doctors letter, there is already a problem that a person is treated by HMPO differently than by other government departments. (this is the govts case)

The only answer that the SS has is that is different because it relates to M and F.

It cannot be an answer. There is a fundamental incoherence between passports and other parts of their existence.

There has been no attempt to change this position

- this is an incoherence the SS is happy to live with ... and we agree.

Why should a non gendered person have to be subject to coherence.

Judge: when did the practice start?

G: Rees proceedings were lodged in 1979.

It isn't an inconsistency the SS has sought to amend.

There is far less incoherence in a non binary person having an X passport

A trans person has more incoherence - it says F in the passport and M in every other part of life.

The X passport is much less incoherent

Gender Recognition Act does not apply for all purpose - sports, parenthood, sex offences.... she alludes to Lauren Hubbard

There is not incoherence between having X in passport and being recognised a M or F in other parts of life

Lady Arden - don't you have to look at the coherence for the state?

G: all a person needs to change gender in a passport they only need a doctors letter, no surgery etc..

G: A Q of implementation can a person just decide to "be an X" rather than an M or F? How do you stop someone doing this on a whim? Is a question for government, but the appellant is clearly not acting on a whim

[Note: "be an X" - previously she said X meant "unspecified...]

looks at Timothy Woodhouse - immigration and security civil service.

Security is a legitimate aim
Gender mismatch can indicate fraud

If a person applies for a first passport they need to show a birth certificate

If a person applies for an X passport there is a mismatch which is reconcilable.

"What do you need to provide to get a passport which is different from the gender on your birth certificate"

[Note: "gender" not sex... it is sex which is recorded on a birth certificate]

Government did a survey on passports to members of ICAO - low response rate from member states.

10/21 respondents identified concern that removing sex markings was not supported- re: identifying people at borders

"That is not the point, here we are talking about including X"

Border security was dismissed as a reason by CoA. People have been entering the UK with an X.

SS says it does not engage with her findings - that this marker is part of a wider dataset which contributes to identity verification.

We say it is an outdated assumption that a person's gendered appearance should align with M or F

[Taking a break for lunch - Supreme Court will reconvene at 2pm]