Thread by @fairplaywomen

#Xpassports
Discussions begin round Human Rights Article 8 (right to private life). Court has previously agreed that Article 8 IS engaged. Refusing X on a passport does interfere with human rights. The issue before the court is whether this interference is justified /1

Appellant QC raises the issue of how human rights leads to positive obligations on the state. What is the margin of appreciation when considering the impact on wider society? Wide or narrow? /2

Appellant QC argues there is a positive obligation on the state to 'recognise' a non-gendered identity. The UK gov has not yet accepted this obligation. Therefore refusal to allow an X on a passport is a lack of recognition rather than an implementation issue. /3

Judges ask if this is about self-identification. Appellant QC refers them to Human Rights Watch 'helpful' definitions. /4

Judge hones in on difference between sex and gender identity. Judge says passports are about sex. Asks whether appellant wants their sex to be recorded as X. Vague answer from QC about appellant identifies as non-gendered. /5

Judges wanting to define what X would actually mean and who could use one. Could a "cis-gender" person use one? Who is the affected class in this case? QC answers that this would be up to the government. /6

QC says on the application form for passports it asks for 'gender'. Judge asks if there is a definition under 'help'. QC can't remember. Now checking. [Note that ON the passport the box is marker SEX] /7

[here we see yet again the way the word 'gender' originally understood as a synonym for sex is now being reinterpreted to mean 'gender identity'.] /8

QC argues that passports are a commonly used document to confirm 'identity'. Its more than just a travel document. Forces people to reveal their sex and therefore disclosing if differs from their gender identity /9

The dysphoric effect is making a false declaration to get a passport and having to produce something that doesn't match their identity /10

Judge asks - could government define sex and say THAT should be on a passport and not a gender identity? QC says no because trans people can put their self-ID gender on passports. So NB people should be able to also. /11

In 2002 government relied upon the ability for a trans person to have gender identity on a driving license and a passport as a means to prevent a trans person undergoing detriment in every day life. It is a 'minimum of formality' /12

Judges push to ask what the eligibility requirements are for trans people on a passport. Is is self-ID or is it medical? QC avoids answering [because we know its self-ID] /13

QC explains HMPO guidance. "option open to those without a GRC and without gender reassignment surgery". Requires only "letter from doctor saying change of gender is permanent". /14

[here we see the cost and consequences of the government allowing passports to be changed from M-F or F-M in the past without considering the wider implications. This is now being used as justification why this should be open to people who identify as sexless too]. /15

Appellant QC talks about discordance between social reality and the status imposed law may cause feelings of humiliation & anxiety. Goodwin case confirmed an obligation for state to have coherent approach. If surgery is provided there should also be a method for legal change /16

QC argues the same applies to non-binary people - appellant has been provided surgery to remove sex characteristics by the NHS. So state should acknowledge that identity in other ways e.g. on a passport /17

Both sides agree that Article 8 is engaged over matters of gender identity. But gov argues having this acknowledged on a passport has minimal impact and should be considered "trivial". Therefore on balance there is no positive obligation to provide it. Appellant disagrees. /18

Appellant days the impact on the state is 'negligible' because only asking for passports and NOT full legal recognition of sex status. There maybe other 'complicated issues' that may arise but that's a matter for "another day". /19

Judges asks about 'domino effect' and impossible for court to constrain itself to passports only. QC reveals that appellant would be 'delighted' about a domino effect but that would be for another legal case with different arguments /20

Appellant QC says Article 8 is engaged so this case is arguing there is a positive obligation on the state to allow X on passports. It is NOT about full recognition of legal status. Appellant wants X to mean 'unspecified'. It would not mean non-binary, gender fluid etc /21

But QC then argues that all of these people WOULD be capture under the positive obligation because 'gender identity' is covered by Article 8. /22

Appellant QC reviews other cases about how positive obligations to Article 8 is viewed. Reasons for refusing a positive obligation should be exhaustive and restrictive. Administrative coherence is not a good enough reason. It's not a sufficient legitimate aim /23

QC raises again that government allows changes from M-F and F-M on a passport despite this being an administrative incoherence with other areas (e.g. birth certificates). The gov doesn't have a problem with THIS admin incoherence so why does it rely on it in this case? /24

QC argues an X is LESS administrative incoherence compared to allowing people to change from M-F and F-M in passports /25

QC says there is no necessary coherence argument because this isn't the case for trans people. A GRC has 'exceptions' for when acquired gender doesn't apply (eg sports, inheritance, parental status). /26

Malta allows self-ID on passports - including an X. It would be up to the UK gov if it does the same or whether it would have additional requirements (doctors letter, diagnosis etc). /27

Identity theft and fraud when applying for passport: Appellant QC argues no problem because first passport requires a birth certificate. If they want to later change to X there will be a discrepancy but passport office can make extra inquiries (ask to see doctors note) /28

Appellant QC argues this should make identity theft less likely not more [that appears to be an extraordinary claim!] /29

Border security: Appellant QC argues there has been no impact on security with people from OTHER countries entering UK with X on passport. Border staff should NOT rely on visual identification of sex based on appearance. It is outdated /30

Adjourned for lunch. Back at 2pm /31

Back after lunch - now turning to discussion about "margin of appreciation". [This means how much leeway does the state have to apply a positive obligation] /32

Precedent says margin should be restrictive if relevant to an important identity and if there is general consensus. Wide is contentious and there needs to be a fair balance made wrt to impact on others /33

Appellant QC argues that even if margin is deemed 'wide' it can be exceeded by the state. In the past for trans people the state has done its best to accommodate. For NB people the government has done 'nothing'. /34

It's never consulted on X passports. Internal reviews have come to nothing. GEO said "in early 2021 officials have advised minister there should be an internal review regarding use of X markers on documents". ETA September 2021. /35

QC says review has been 'prompted' by this appeal. Undermines the claim that the government has been 'looking at it'. Court asked to view government's engagement with the issues with 'scepticism'. There have been no concrete steps by gov since claim threatened in 2015. /36

QC says gov argues there's no consensus or international trend. Therefore gov says it has a lot of leeway. QC lists which countries DO offer X on passports or ID documents. Argues that's its 'constantly developing'. Must look to the 'trend' not the consensus now. /37

QC discusses Goodwin (the case that triggered the GRA2004). Here the international trend was recognised ahead of any consensus. Judges not convinced. Some states put high value on liberal individualism (eg. canada, netherlands etc) which can drive a trend. /38

Judge asks if a trend amongst European states would be more relevant than trend amongst international states. QC doesn't accept that an absence of consensus in Council of Europe states would be a 'killer blow" /39

QC argues that people who seek X passports are the "most marginalised of marginalized people" so its no surprise few countries have adopted X on passports /40

Judges asks what Strasbourg Court (European Court of Human Rights) might rule on this case (this is where an appeal may go next). Does ECtHR give weight to following trends outside Council of Europe states? /41

Not clear what the conclusion was to this! /42

There are no "sensitive and moral and ethical issues" relating to this case. Judge challenges whether this is correct. Is the idea that people are sexless really not a moral or sensitive issue? QC says its not controversial [!!] /43

QC argues there's nothing controversial about "not specifying a gender on a passport". Much less controversial that allowing people to change sex marker from M-F or F-M. /44

There might be 'other' areas that might raise ethical issues - that may be brought by others in connection with recognising NB identities - but not with THIS case about X on passports. [another clear dismissal of any domino effect] /45

QC says appellant is "not asking for high controversial rights" as distinctive from same-sex marriage. /46

There are "no competing rights or interests" so this cannot out weigh the rights of the individual [where have we heard this old chestnut before!] /47

Strasbourg has not ruled on non-binary issues. Appellant QC argues that domestic courts should be able to develop the law in the absence of a Strasbourg ruling. Judges not convinced - domestic court should seek to do what Strasbourg would do - not do something different. /48

Judge pressing very hard. If supreme court concludes Strasbourg would reject the case does appellant agree that the supreme court must reject also. QC appears to say yes - but doesn't think Strasbourg would reach that conclusion /49

Judges not happy - all asking questions - asking QC to clarify position. Does appellant argue that supreme court can decide there is a different margin of appreciation compared to principle from Strasbourg. [judges clearly think they can't]. /50

Strasbourg has not explicitly ruled that non-gendered identities are protected - but it is considered to fall under Article 8 which covers gender identity more generally. /51

Common ground = Article 8 is engaged. Appellant is treated differently to others based on gender identity.

Gov says interference with a positive obligation on human rights can be justified because its necessary. QC argues that the burden of proof is on the government /52

Judge points out that there is a strict approach to discrimination on the grounds of sex because its long established way of protecting women. /53

Can it be taken for granted that 'gender' can be considered in the same way sex. QC argues yes. Judge says it is different. Its not fundamental to western society for 2000 years. /54

Appellant QC disagrees and implies that trans people have been around for ever... /55

QC argues that administrative coherence can't be used as the argument that its necessary not to allow an X. This is because for trans people there's already no administrative coherence (e.g. different makers on different docs) /56

[in other words sex markers have already been messed up so why not mess it up some more......] /57

[they have a fair point here and shows what a mess the government has already made of its position on sex markers...... ] /58

Wrapping up: This court should not hesitate that the gov has discriminated against the appellant by maintaining a policy that does not allow X on passports. Court should not allow government more time to review its position. It's had at least 8 years to come up with a plan /59

NOW 30 MINS FOR THE INTERVENER: Human Right Watch /60

HRW submits that there is a well established general protection for identity to be recognised. This includes non-binary identities. Therefore there's no new development of law required here. /61

Lots of people are NB. The LGBT survey run by the GEO shows 52% of the trans respondents said they are non-binary. /62

HRW: Lots of binary trans people are 'harassed' so the same should be considered happening to non-gendered people. Forcing non-gendered people to declare a gender is distressing /63

HRW: No evidence of X passports causing trouble or complications in the 13 countries that have adopted them. More and more US states are now adopting X passports. This shows its a rapidly accelerating trend. /64

There are now 23 US states offering X passports (90 million people). And now the Biden administration has confirmed it wants to introduce X in federal documents /65

HRW now presents the Yogakarta principles - developed by "eminent and extremely distinguished experts in this field". Pedigree of experts include former UN human rights commissioners, judges, ACTIVISTS etc. HRW says these principles are not law but clearly very important! /66

YP recommends "states should take all legislative steps to reflect self-defined gender identity on documents". Judges asks what standing these principles have? HRW says the YP experts agree they 'reflect' the principles of human rights law - but are not binding in law /67

YP+10 goes further and says "everyone has the right to legal recognition of gender identity and to change gendered information". "While sex or gender continues to be registered on state documents there should be a multiplicity of gender options" /68

Judge: Is this consistent with international norms?
HRW: Yes!
Judge: How can that be true?
HRW: Its not universally applied but very important people have agreed it matches international consensus. /69

[HRW are getting 30 mins in front of the Supreme court judges to sell gender identity theory] /70

HRW: If court accepts the appellant's modest claim to an X marker in passports this does not involve recognising any new principles. It is simply applying well recognised principles. /71

Adjourned: resitting at 10.30am tomorrow /72

HRW got the the chance to sell gender ideology. We sought permission to explain to the court why sex matters too. We were refused. But you can read our submission here /73. fairplayforwomen.com/wp-content/upl…

Breaking the sex binary undermines women's sex-based rights. Transactivists already suggest non-binary gender belongs in the women's category. /74

"This is an attempt to engineer ... public policy... that would render immaterial the legally salient differences between women and men... FPFW is keen to ensure that women's concerns as to why sex matters are heard" /75

Intrigued to know more? This article explains why this case really matters to women and why we decided to act. Non-binary gender is the next battle ground we need to defend. Come back for more live tweeting tomorrow /76

fairplayforwomen.com/non-binary-the…

YOU CAN FOLLOW DAY 2 HERE:

https://twitter.com/fairplaywomen/status/1414877533032656909?s=20