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What is your gender?
Whilst this question may seem straightforward, this can be difficult to answer if you are transgender, intersex or identify as non-binary. This can lead to people declaring they are a particular gender (often their birth assigned gender) on passports and driving licences even though they do not identify with this.
British citizens must declare that they are either male or female on their passports; we do not have the option to choose a neutral gender category, unlike other countries around the world, such as Australia, Canada, Denmark, Germany, Malta, New Zealand, Pakistan, Ireland and Nepal.
Human rights campaigner Christie Elan-Crane has campaigned for this to change on the basis that it breaches an individual’s right to private life and discriminates against people who do not identify as male or female. Elan-Crane’s application for a judicial review of the passport policy was declined by the High Court last week.
Mr Justice Baker, who heard the case, considered that a judicial review was not currently the most appropriate approach, especially as the government is collecting and collating extensive research about issues faced by trans people including those raised by Elan-Crane. Importantly, MP Maria Miller, Chair of the House of Commons Women and Equalities Select Committee, has previously said a person's gender was "not relevant" on passports and driving licences and does not assist with identification.
Whilst trans people have been given some rights by the Gender Recognition Act 2004 (“GRA”), this is now seen as outdated legislation which needs reviewing, as acknowledged by the House of Commons Women and Equalities Select Committee. The GRA provides that trans people can apply for a gender recognition certificate so that they can legally change their gender. However, there is strict criteria for this, as trans people must be formally diagnosed with gender dysphoria and must have lived in their preferred gender for at least two years. Non-binary people are not recognised at all by the GRA.
Whilst Elan-Crane’s case was unsuccessful, the government has stated it will review the GRA. In light of more countries having non-gender passport options, and the upcoming review of the GRA, it is hoped that trans people, along with intersex and non-binary people, will be given equal rights soon, especially when it comes to self-determination.
Sameena Munir is a Solicitor in Kingsley Napley’s Private Client team and is a member of the firm’s Diversity and Inclusion group and LGBTQ & Allies network.
Kingsley Napley are publishing a series of blogs to celebrate Pride and to raise awareness about the issues facing LGBTQ people in our communities. You can view our other blogs here.
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