Dr Gizem Guney, Senior Lecturer in Law with Criminology, University of Portsmouth
In 2021, the UK Supreme Court decided that the UK’s failure to provide an ‘x’ gender marker on passports did not violate the UK’s obligation to respect and protect the right to privacy. The case was brought by a British campaigner, Elan-Cane, who claimed that binary gender markers in passports failed to recognise their legitimate identity. The Court dismissed the application on the grounds of security concerns and likely substantial administrative costs. Elan-Cane has announced the case is headed to the European Court of Human Rights (ECtHR) for an appeal. This will be the first case that the ECtHR will have the opportunity to decide on a claim for the third gender category.
The Elan-Cane case reflects an increasing demand in UK society and across Europe in terms of recognition of gender identity and challenging a binary understanding of gender. It is important to analyse whether the ECtHR, the most effective human rights court in Europe, is catching up with these demands that are ever-growing. In this post, I will examine whether the ECtHR is likely to uphold the claim of Elan-Cane in the light of its jurisprudence, and therefore, whether the UK will be legally bound to recognise third-gender identity anytime soon.
ECtHR and a third ‘x’ gender
There has been no case reviewed by the ECtHR concerning the legal recognition of a third gender category, such as ‘x’, beyond female or male. The cases considered by the ECtHR around gender identity concerned post-operative transsexuals and transgender individuals who wanted to change their legal gender from their biologically assigned sex to the opposite sex.
It is fair to say that the ECtHR is falling behind national developments across Europe in the context of LGBTQI+ rights. For example, although gay marriage has legally been recognised in many European states, the Court has not caught up with these developments yet. The Court has only reached the point that the relationships of same-sex couples have a need for legal recognition in some form, such as civil partnership status, not necessarily as a ‘marriage’.
In the context of transgender rights, the ECtHR has developed its approach over time. For example, it decided in 2002 for the first time that the failure to recognise the applicant’s affirmed gender after gender surgery violated the right to privacy and to marry. More recently, the ECtHR found for the first time that the condition of compulsory sterilising surgery, or treatment, for legal gender recognition was a violation of the right to privacy. This was confirmed again in a 2021-dated decision.
Although these cases demonstrated progress in the recognition of transgender rights, the ECtHR did not reach its findings recognising the intrinsic values that the right to privacy holds, instead it relied on a European consensus reading. In this approach, the ECtHR examines the European states’ laws and policies on the matter and decides according to the approach taken by the majority. This approach, which has dominated the cases concerning LGBTQI+ rights, has been criticised as overly cautious and as sacrificing the ECtHR’s counter-majoritarian aim to protect the rights of minority groups.
Legal Recognition of Third Sex/Gender in Europe
Presently, only a few countries in Europe allow non-gendered ‘x’ markers on passports. Iceland and Denmark are the only countries that recognise a voluntary third-gender option without proof of medical conditions. Austria, Germany, the Netherlands, Ireland and Malta, on the other hand, provide the option of a ‘x’ gender but require a medical certificate or other documents or procedures.
This shows that Europe has not yet reached a consensus on the recognition of an ‘x’ gender. It still represents a minority approach, which would clearly fail to meet the consensus reading of the ECtHR.
What to expect from the ECtHR?
The ECtHR’s approach towards ‘x’ gender passports certainly cannot be predicted as there is no precedent established. The ECtHR’s decision on Elan-Cane will be the first case in which the matter is handled.
However, considering that only a small minority of European states legally permit a ‘x’ gender marker in passports, and that the ECtHR has traditionally relied on the consensus reading in LGBTQI+ claims, the case is more likely to be dismissed than upheld.
Moreover, even if the court were to find a violation and oblige the UK to allow an ‘x’ gender on passports, it is not clear how seriously this would be taken by the UK, as it has not always complied with the ECtHR’s rulings (see prisoners’ right to vote as an example).
All in all, it does not seem plausible to expect an affirmative position on ‘x’ gender passports from the ECtHR, therefore Elan-Cane’s application may not be a step closer to bringing ‘x’ gender passports to the UK. Considering the cautious approach of the ECtHR on gender issues, a change is unlikely to be encouraged by the ECtHR anytime soon but is perhaps more likely to emerge in the UK’s own laws and policies.