Gender neutral X passport case lost

In an appeal judgement given by the Supreme Court, the requirement for the passport office to issue gender neutral passports (gender X), has been lost.

Background

The Appellant was born female but underwent several operations that were successful in achieving the desired status of “non-gendered.”

From 1995 onwards the Appellant has been in contact with Government Departments to seek to persuade the Government that a passport should be issued to the Appellant without the necessity of making a declaration of being either “male” or “female”. This could be achieved by a third box being added to the passport application form allowing a person to mark that box with an “X” indicating gender “unspecified”.

The Government refused to do so but conducted internal reviews to consider whether policy change was required. Its position throughout the proceedings has been that the current passport policy should not be considered in isolation, but as a part of a more fundamental review, which has begun but has not yet been completed.

The Appellant filed judicial review proceedings challenging the Government’s passport policy. The judicial review was dismissed by the High Court and Court of Appeal.

This was appealed to the Supreme Court.

The questions

The appeal raises two questions:

(i) Does article 8 of the European Convention on Human Rights … impose an obligation on a contracting state, when it issues passports, to respect the private lives of individuals who identify as non-gendered, by including a non- gendered (“X”) marker for the passport-holder’s gender, as an alternative to the markers for male and female?

(ii) If not, is such an obligation nevertheless imposed on the Home Secretary by the Human Rights Act 1998?

Conclusion

The appeal was dismissed:

Although the European court does not appear to have considered the issue raised in these proceedings, this court, and the courts below, have endeavoured to assess whether, applying the principles established in the European case law, the Secretary of State is under an obligation, by virtue of article 8 of the Convention, considered either alone or together with article 14, to provide the appellant with an “X” passport. The conclusion is that the Convention imposes no such obligation, at least at the present time. There is no reason why that assessment of the position at the European level should not be followed at the domestic level in the application of the Human Rights Act.

For the judgement see:

Being Gender neutral and payroll

A number of requests are received by HR and payroll departments to apply a gender neutral status on both HR and Payroll records, however, the HMRC Real Time Information (RTI) Full Payment Submission (FPS) has a mandatory requirement to report gender only as Male or Female.

If gender was to be missing, then the entire FPS submission is rejected.

Opinion

Whilst employers will want to respect the wishes of their employees, they remain under reporting obligations to HMRC. So employers find themselves in a position of having to report gender as Male (M) or Female (F) for payroll PAYE purposes.

In relation to HR records, individuals who identify as gender neutral are not included on the Gender Pay Gap report.

We will have to see if government policies for the operation of PAYE will be revised. The need to report Gender on the annual P60 has already been removed.

PAYadvice.UK 17/12/2021

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