Thread by @fairplaywomen

#XPassports
TODAY TWO
Follow this thread for live tweeting of the government defending its position to refuse X on passports at the Supreme Court.

You can also watch the proceedings here. Starts 10.30am /1
supremecourt.uk/live/court-01.…

Sir James Edie QC is speaking for the government. (The same Sir James we beat in the ONS case but we won't hold that against him :-D) /2

JEQC: Does respect for private life (Article 8) impose a positive obligation on the state to take action? If so then EVERY country that doesn't allow X in passport is in breach. The fact they don't is because there is a wide margin of appreciation (leeway) for each state /3

Issues to be considered in the margin of appreciation include 1) Moral issues, 2) consensus amongst states, 3) public interest and 4) private interest /4

All factors need to be weighed to decide on whether there is a positive obligation on the state /5

JEQC is now comparing the approach taken in another Supreme Court case regarding "weighing up of factors" to determine how much leeway states have to decide a policy. Rather dry legal argument about how judges should approach this case /6

JEQC discusses fact that by confining to 'X on passports' the appellant tries to avoid all the ramifications of recognising non-gendered identity. These other factors must be considered. /7

International consensus cannot override lack of consensus in the member states of the European council /8

The 'yogakarta principles' are not a state obligation or law. /9

Extensive reference has been made to recommendations to expand NB rights (parliamentary committees, YP etc). But these are just suggestions by a group not a consensus. Must not be confused. /10

JEQC discusses YP. Yogakarta principles have never been relied on by ECtHR. HRW claim 'consensus' by 'experts'. That's not important. We need 'consensus' by the states. There is no way YP reflect current consensus in international law or state practice. /11

JEQC now touches 'public interest' as a factor to weigh up. eg the state and its systems. If a change is to be made it should be across the board and thought through. State is allowed to think through broader issues and can take time to do this /12

Appellant QC had argued that balancing 'public interest' is NOT a legitimate aim. JEQC says it is. There are real and sensitive issues about how change impacts other areas /13

State must be allowed to understand and consider the impact a change can have. e.g. Does it raise complex social issues. /14

JEQC submits that the court must decide if there are broader issues at play. If satisfied that there ARE broader issues then its up to the state to decide how it reviews and acts in relation to these broader issues /15

JEQC: A legitimate aim can include the 'Rights and interests of others'. /16

Lady Rose: "A positive obligation is not an absolute. It must always be a fair balance." /17

JEQC submits that the state must think through what might happen across government and elsewhere if non-binary starts to be recognised. (e.g. prisons). "The scale of the issue is important and underpins the lack of consensus". /18

JEQC: "It would be a move away from a M-F system to something completely different." /19

Appellant QC advocates that the driver for the change is "the importance of non-gender recognition". So its clearly about more than just an X on a passport. /20

JEQC addresses the issue that trans CAN change their passport sex based on self-ID BUT within the M-F system. This does raise some administrative incoherence (differences between passport & birth certificates) but reinforces need to review the impact of further incoherence /21

JEQC submits that there is a fraud risk because state allows switching between M-F on passports. Allowing a switch to X will further increase this fraud risk /22

JEQC agrees that the governments review of the wider issues is 'stuttering' but they are not doing nothing. The complex issues are under consideration. They are not ignoring the issues. There is ongoing work. /23

JEQC: Dealing with evolving values, interests and rights. None of the Strasbourg cases have covered non-binary status. Can't assume that binary transgender principles automatically applies to non-binary also. /24

JEQC: No victimisation or harassment claimed by appellant for not having an X on a passport. /25

Adjourned for lunch. Resume at 2pm /26

Appellant QC now speaks again.

Sir James raised the point that there are "Social issues" associated with X passports. Appellant QC says this is not the same as a "sensitive, moral or ethical" issue so should not be part of wider considerations /27

Appellant QC submits that it is just "speculation" - rather than actual consequences of allowing an X on a passport. There is no need to do anything except put an X on a passport. Its not 'necessary' to amend anything else as a consequence. /28

JEQC had submitted gov wants to approach this in a more holistic way & this is a choice that is open to the government. Appellant QC wants case limited to X passports only and submits gov can't argue there 'might' be other issues as a way to justify not allowing X passports /29

One of the judges is disagreeing with this interpretation. Can't limit this just to X passports. Appellant QC argues they should - furrowed brow from judge.... /30

Consensus - Neither appellant nor Human Rights Watch submit there is an international obligation to require X passports. But international law is 'helpful' source of 'ideas'. /31

Judge: What about other peoples article 14 rights? Does this come into play when balancing rights? Gov should be able to check whether giving rights to some might impact Article 14 rights of other groups. Appellant QC says there is no impact on others /32

Judge: If we allow an X marker it will be argued in other fields of life there should be an X marker. Gov should be able to take this into consideration. Appellant QC says these other arguments could already be made now. Its not a reason to stop X passports /33

Appellant QC says if they were asking for legal recognition for NB as a third SEX (like in the GRA) then all the wider impacts SHOULD be considered. But they are only asking for an X on a passport - no legal recognition. Judge not convinced at all /34

Judge wraps up. Thanks Counsel. Court adjourned /35