The government has recently announced an unprecedented lockdown requiring people across the UK to stay at home to tackle the 2019 novel coronavirus disease (COVID-19) outbreak. The consequent restrictions on individual liberties undoubtedly engage the right to a private and family life under Article 8 of the European Convention on Human Rights (ECHR). This right can be limited in certain circumstances, including where necessary for the protection of health. Considering the danger to life posed by COVID-19, the government‘s restrictions in this instance are likely to be justified and proportionate in the circumstances.
There are, however, cases where the question of whether the state‘s interference with the right to respect for private life is lawful is less clear-cut. The recent Court of Appeal case of R (Elan-Cane) v Secretary of State for the Home Department  EWCA Civ 363 is one such example.
The background to the case is whether the government should allow “X“ as a gender marker on UK passports. The High Court initially found that Article 8 was engaged by the appellant‘s non-gendered identity, but that the state did not have a positive obligation to allow “X“ as a passport gender marker. Although the appellant‘s appeal to the Court of Appeal was unsuccessful on this occasion, Lady Justice King made the point that the time will come when the state‘s position is no longer tenable. This case is an example, therefore, of where the answer to whether there has been an unlawful breach of Article 8 may vary over time.
On the subject of whether Article 8 was engaged on this occasion, King LJ held that:
“it is obvious and indeed beyond argument that the facts of this case concern the Appellant’s private life and engage Article 8. There can be little more central to a citizen’s private life than gender, whatever that gender may or may not be. No-one has suggested (nor could they) that the Appellant has no right to live as a non-binary, or more particularly as a non-gendered, person. Indeed, a gender identity chosen as it has been here, achieved or realised through successive episodes of major surgery and lived through decades of scepticism, indifference and sometimes hostility must be taken to be absolutely central to the person’s private life. It is the distinguishing feature of this Appellant’s private life.” (Paragraph 46.)
In considering whether the state has a positive obligation to allow “X“ as a gender marker on UK passports, the Court of Appeal noted that, although the object of Article 8 is to protect the individual against arbitrary interference and the obligation inherent in Article 8 is primarily a negative one, there is also a positive obligation ingrained in an effective respect for private or family life. Following on from that, the Court of Appeal held that, in considering whether there is a positive obligation, and if so, how it should be given effect, the state enjoys a certain margin of appreciation, which may be wide or narrow, depending on the circumstances.
The Court of Appeal held that it had to consider:
- Factors relating to the identity in question (the “identity“ issue).
- Factors concerning the state and its systems (the “coherence“ issue).
- The position in other states in the Council of Europe (the “consensus“ issue).
On the identity issue, the Court of Appeal acknowledged that the appellant had a justifiably strong personal interest in gaining full legal recognition as a non-gendered person and upheld the High Court‘s assessment of the impact on the appellant of the discordance between the social reality and the law. King LJ did note, however, that the High Court had been justified in considering the limited nature of the appellant‘s complaint (that is, focused on the specific “target“ of gender markers on passports).
On the coherence issue, King LJ held that it was permissible for the government to not consider the issue of gender markers on passports in isolation and that it was reasonable to consider it as part of a more fundamental review in relation to gender identity issues. King LJ dismissed the government argument that security issues, including combating identity fraud and theft and the need for security at borders, should affect the fair balance between the interests of the individual and the community. (Paragraphs 70 and 71.)
In reaching its decision on the consensus issue, the Court of Appeal considered the cases of Rees v United Kingdom (1987) 9 EHRR 56 and Goodwin v United Kingdom (2002) 35 EHRR 18, which related to the UK‘s margin of appreciation in relation to whether the state should allow a trans person to amend their birth certificate to reflect their affirmed gender. Although the challenge in the case of Rees had been unsuccessful, a similar challenge in Goodwin was successful on the basis that the consensus regarding legal recognition of affirmed gender in the context of trans people had changed in the intervening years. The European Court of Human Rights noted in Goodwin that the court should maintain a dynamic and evolutive approach to interpreting and applying the ECHR.
In this case, however, King LJ held that there was not enough of an international consensus to impose a positive obligation on the state at this time:
“Looking at the totality of approach to gender identity issues world-wide and the information made available to the court, it seems to me that, whilst the direction of travel, or “trend”, is undoubtedly moving towards the recognition of the status of non-binary people, there is, as yet, nothing approaching a consensus in relation to either the broad and indeterminate issue of the recognition of non-binary people, or the narrow and precise issue of the use of “X” markers on passports which is before this court.” (Paragraph 84.)
The Court of Appeal noted that, in determining whether a positive obligation exists under Article 8, a fair balance has to be struck between the competing interests of the individual and the community as a whole. On the facts of this case, the Court of Appeal upheld the High Court‘s decision that there was no positive obligation to provide an “X“ marker in UK passports. King LJ did, however, give a clear indication that the position may change over time, stating that: “If, as here, Article 8 is engaged, there is a respectable argument that we are approaching a time when the consensus within the Council of Europe’s Member States will be such that there will be a positive obligation on the State to recognise the position of non-binary including intersex individuals.“ (Paragraph 108.) King LJ went on to note that: “there is an undoubted momentum within Europe in relation to just how the status of non-binary people is to be recognised. The time may come when the importance of these issues and the Article 8 rights of non-binary people will mean that the fair balance has shifted and that, as in Goodwin, the margin of appreciation as to recognition of a positive obligation will be exhausted.” (Paragraph 109.)
It is understood that the appellant in the case intends to appeal to the Supreme Court. As mentioned by King LJ, the European Court of Human Rights has not as yet been confronted with a case in which it was required to analyse non-binary gender in ECHR terms (paragraph 45). Depending on what happens with any further appeal, this case may end up being the first time it does so. It is also likely that the case will be relied on in any future challenge regarding legal reform in this area. Remembering the Strasbourg Court‘s words in Goodwin, its dynamic and evolutive approach to interpreting the ECHR may soon lead to a welcome finding that the state does have a positive obligation to provide legal recognition of non-binary and non-gendered identities.