Thread by @SexMattersOrg

We are back with part II of the live tweets of the #XPassports case #ElanCane

Kate Gallafent QC for the Appellant Christie Elan Cane
Judges Lord Reed, Lord Lloyd-Jones, Lady Arden, Lord Sales, Lady Rose

KCGQ: starts again on the margin of appreciation in the case of Hammeleinen (a Finnish case on gender recognition)- wide or narrow
1)Narrow is it important to a person's identity? (Passport is customarily used for identity)
2)Consensus?
3) Wide: competing public & private rights

Margin she says is not a factor in itself - it goes to the balancing exercise, rather than a factor. the degree of latitude given to the state vs the private actor?
Even if there is a wide margin it would still be possible to see if the state has exceeded it.

In Rees the UK had endeavoured to meet demands to the full extent allowed by the system.

Also in Goodwin - the authorities had sought to minimise intrusive questions by allowing passports, driving licenses etc.. to be changed.

When we speak about the width of the margin of appreciation we say it is necessary to have regard to what the SS has done - which is so far as any concrete steps the SS has done nothing. Viewed the person in A position had no Art 8 rights. Has not taken any steps to meet requests

20 April 2021 - Ollie Enwhistle - early 2021 advised ministers that there should be an internal review
11 Mar 2021 Ministerial submission provided - non-binary options document [ FOI klaxon...?]

A review with other government department on X documents (to be completed by September 2021). Looking back to issues it was supposed to have looked at in 2017 but came to nothing.

Consideration of issues by govt will be concluded in 3 months time, but not in time for this hearing.

Lord Sales - what should the government have done?

KGQC - they should have considered it. They should have taken concrete steps to consider X Passports

2)Consensus... Goodwin refers to an international trend - Australia and New Zealand

3)SS say uniformity or a real and strong consensus of view is needed for a narrow margin of appreciation - we disagree - recognition is a trend. References Liberty's intervention in Goodwin

Canada, US States and New Zealand

US states offering gender neutral X on documents

So far as uniformity and "strong and real" the court attaches importance to the continuing international trend

26 member states no longer require surgery for gender recognition.

22 states allow X passports

Its the trend!

You look to the trend not to consensus...

[Comment: No dominos here, mind...]

Goodwin emphasised the "continuing international trend".

Lord Sales - Strassbourg there seems to be slippage between looking at ECHR member states vs international trends

It is the European Convention on Human Rights

If you showed there was an acceptance of FGM in other countries that would not be accepted in the ECHR.

Lord Sales - The trend seems to be states which emphasise liberal individualism

KGQC: need to consider the international trend

Lord Lloyd-Jones the position of the CoE states is more important for considering if there is a positive obligation ?

KGQC: Because passports are the royal prerogative and not linked to other civil obligations, the absence of consensus is not a killer blow

LLJ: I am not saying it is a killer blow, i am saying it goes to the weight given to practice in other member states vs other countries

KGQC: people seeking X passports are most marginalised of a marginalised society (🙄) - there is no positive action in member states. But i don't think we should take inaction of saying this is a decision against it.

LLJ: but why is the US, Canada etc... relevant

KGQC: Because Goodwin says it is. Strassbourg takes it into account

Lady Rose: Strassbourg might decide that you are subject to this right because you have royal prerogative, but countries that require legislation don't have to

KGQC: it would be open to them to do that

Rose: has that happened before?

Discussion of whether a positive human rights obligation can arise in some states but not in others.

KGQC: can decide there is a positive obligation in the UK, but not required to say there might be a positive obligation in France or Hungary.

4) We don't accept the SS position - there are no sensitive moral or ethical issues here.

Lord Reed "you deny that recognising people are neither M or F does not raise moral or ethical issues?"

KGQC: There is nothing controversial about X passports.

No one has suggested the appelant does not have the right to live as a non binary person.

We are not saying the individual has to be recognised as non-binary, gender fluid. We are saying that the person's gender is not specified on passport.

This is simply something is not specified. It is not controversial for country not to specify a person's gender on passport

We also say it is not controversial that a person's gender identity should be respected.

A person should not have to identify as M or F on their passport.

There are no moral or ethical issues.

There is no necessary connection between this policy and other policies.

This policy does not raise the sensitive issues that might be raised in other contexts.

Case AP Garcon - The vast majority of states required a gender identity disorder for change of gender.

Consensus was one of 3 factors that went to it. Also WHO and Manual on classification of disorders recognised gender dysphoria.

You cannot say consensus trumps the person's identity.

Rose: what if the government had undertaken some consulatation and decision making - would it alter the breadth of the margin of appreciation.

KGQC: no it wouldnt

The appellant is not asking for controversial rights - compared to same sex marriage.

6) SS These substantive issues give rise to controversial issues. We say no. An X meaning unspecified on a passport does not give rise to issues.

This is not a case where the balance is between competing interests.

Administrative coherence is not an an interest and can not override the interests of the individual.

Re: Margins of appreciation - the Uller principle - go as far but no further. Lord Hoffman says if Strasbourg hasn't said it is saying it is covered by the margin of appreciation. National authorities can decide for themselves

Lord Sales - it is the opposite. If Strasbourg hasn't ruled then there is no reason to we are in breach of ECHR

KGQC - picks up case of AB - when should the court consider questions of convention law. It is not for the court to develop convention law.

In situations that have not yet come before the ECHR they should seek to anticipate the principles of ECHR.

Lord Sales: if we thought Strasbourg would find this would still fall within margin of appreciation we should also find the same.

KGQC: Yes

KGQC: You have to grapple it, even if it would be in margin of appreciation - (discussing Re G case - about same sex adoption )

Lord Reed: not convinced - the issue here was that it was in breach of the European Convention on Human Rights.

KGQC: can you anticipate what Strasbourg might do?

In reaching that anticipation you don't have to find that you can't go further than the Strasbourg case would.

Lord Sales: But don't you go no further than you anticipate that Strasbourg, otherwise what is the point - you'd say make it up yourself ?

KGQC: Yes, i've got another point

We know that the importance of gender identity covers the gender identity of appellant.

The appellant is required to make a false declaration of gender

And to show a passport that does not reflect gender

[Comment: Kate Gallafent is doing very well at not using pronouns about the appellant. She must have practiced this - for reference they are per/per/perself]

Other issues raised by SS -
- costs - not an issue
- relatively small number likely to benefit (these individuals are a marginalised groups inside of a marginalised group) Scottish trans alliance survey said only 7 people would want a non gender passport based on open Q

In fact 900 people in Scotland alone might be interested in a non-gendered passport based on multiple choice answers

It is not just the appellant that is interested in this. That is very far from the case.

What policy should be applied as to who should be allowed to have an X passport? It is up to this court to determine whether Art 8 or 14 are breached. Not to determine the "how"

Common ground
- treatment engagesArt 8
- difference of treatment based on "gender identity" which is referenced in Article 14
- margin of appreciation is narrow because the difference in treatment is based on sex (??)

Treated differently from a person who is able to obtain a passport which is consistent with their gender identity.

The differences based on sex (here we say gender) are particularly important (case: Salk)

Lord Reed: the ground of the difference of treatment is what?

KGQC: being non-gendered.

SS does not dispute that that is an other status for the purpose of Art 14

KGQC: The differences based on sex is seen as very important. (here we say gender)

Lord Reed: can we take that a historical basis for treating women less favourably than men. This is rather different is it not?

KGQC: we see it as the same as sex.

Sex is about discrimination between men and women.

You are taking this further with transgender identity.

It hasn't been the basis of discrimination in Western Society for 2000 years or more.

The other strand in the strict scrutiny cases are a stigmatised minority.

KGQC: absolutely right.

SS relies on administrative coherence and security
Administrative coherence is not the same as wait and see.

There is no need for change to any other law or policy
The SS wants time to think about whether to change the policy

Lady Arden - surely there has to be consistency?

KGQC: that hasn't been the case for 40 years

Lady Arden - what about drivers license?

KGQC - a drivers license has sex encoded in numbers

The X passport is unspecified
Lady Arden - that presupposes it will be open to people who are M or F and only people who are nongendered
KGQC: They might chose to give it to Cis people

Already and for decades there has been consistency for transgender persons

It is impossible for the SS to deny X passports to people based on administrative coherence - it is necessity because of Article 8

It does not address the unequal treatment

There is a difference in treatment between a person who is unable to get a passport that is congruent with their gender identity.

Security risk for X passports - there is no evidence of this.

Alternative position of the SS - we should have more time.

We say there was no suggestion that this discrimination was justified historically given the fundamental importance of gender identity.

The state requires a false declaration of "gender identity" on a passport

Lady Rose: a recent realisation that it wan't justified?

The SS didn't appeal the engagement of Art 8

We don't think the discrim could ever be justified. There is no reasonable time to make a change

The SS has not respected the appellants rights under Art 8 read w Art 14, they are not entitled to a longer period of time. It exceeds any period of time that might have been reasonable.

7 years have passed
Administrative coherence is a red herring

Lady Arden: the court could make an order for some time in the future

Lady Rose: Strasbourg would make a judgment and then the government would have to put it right.

What would not be right is to make no declaration from the courts

[That is the end of the appellant's submissions]

Now it is Human Rights Watch Counsel

International human rights principle are that for self identified gender identity and expanding it to non-binary

It does not develop a new principle, but the application of well established principles.

The class of nonbinary persons is by no means insignificant - an umbrella term to anyone whose gender identity does not conform to the sex assigned to them at birth

As many as 52% of respondents to government LGBT survey who said they were trans were non binary

A very real risk of discrimination and harassment if they have to use documents that are inconsistent with their gender identity.

43% of people with gender inconsistent with gender marker NTDS US survey had experienced harassed and discriminated.

47% of those with incongruent documents - discriminated against - forced to declare a gender to which they don't feel they belong

13 countries allow non-binary passports.
Human Rights Watch is not aware of any negative impact on security or administrative complications.
The developments don't stop with the 13 countries. 20 states in the US had introduced identity documents with the X type marker

You can select the gender you want printed on your US passport, we no longer require medical information. You can select M or F. We are working to add a gender marker for non-binary, intersex or gender non conforming.

A true evolving global trend.

Invite you to look at the Yogyakarta Principles - agreed by eminent human rights law experts. Descriptive rather than prescriptive. "Reflect the state of existing human rights law". Will not try to convince that they are binding law but a valuable contribution ...

points at the eminence of the writers. They have been cited by various courts.

Principle 3 - legally recognise each persons gender identity. All state identity papers, census etc... reflect a person's gender identity.

Lord Lloyd Jones: what is the status?

HRW: they are recommendations

LLJ: do they reflect international human rights law

HRW: they are persuasive, not binding

YPs +10 represent the same idea - set out to describe international human rights law as it currently applies.

"While sex or gender continues to be registered, Everyone has the right to change gendered information. No eligibility criteria, age, a multiplicity of options.... "

Lady Rose? Is this an International norm?

HRW: yes

Lord Reed: clearly that cannot be the case

HRW: But the fact that Manfred Novak says this represents international human rights law, take them seriously

InterAmerican Court of HRs 2017 - advisory opinion at the request of Costa Rica - pro self-ID

SS say there is no reason to think that the court's analysis applies to NB. It ignores the court's express reference to self identity.

The idea that NB identity would fall outside

Quebec - a recent decision there is no rationale distinction between binary and non-binary identity
then complainants brought a case in relation to birth certificates

Then discusses a German case - is it about intersex people or people who chose to identify as nonbinary

In so far as the SS may argue that intersex persons may benefit from this - that reasoning applies with equal force to people who are non binary. It is a question of a person's gender identity.

That does not involve recognising any new principles but requires applying well recognised principles and applying them to this case.

[Adjourning now - back tomorrow morning]