The Supreme Court has dismissed an appeal over the government’s refusal to issue gender-neutral passports, in a significant ruling on the application of the European Convention on Human Rights by domestic courts.

Christie Elan-Cane, who identifies as non-gendered, challenged HM Passport Office’s policy that an applicant for a passport must declare their gender. They argued that Articles 8 and/or 14 of the ECHR imposed an obligation on the state to allow a non-gendered ‘X’ option on passports.

The UK’s highest court unanimously dismissed Elan-Cane’s appeal yesterday, finding that Elan-Cane’s interest in being issued with a non-gendered passport was ‘outweighed by the considerations relating to the public interest put forward by the secretary of state’.

Elan-Cane also argued that, even if the European Court of Human Rights (ECtHR) would permit a wide margin of appreciation and conclude there was no violation of the convention, the domestic courts should nevertheless hold that the state was obliged under the Human Rights Act to issue them with a non-gendered passport.

Giving judgment in Elan-Cane v Secretary of State for the Home Department, Supreme Court president Lord Reed rejected this contention, which was based on dicta in the 2008 House of Lords case of Re G (Adoption: Unmarried Couples). In Re G, a majority of law lords indicated that, even if the ECtHR would consider that the legislation in issue fell within the margin of appreciation allowed to states, it was still open to the domestic courts to hold that the legislation violated convention rights.

Reed held that those comments in Re G were obiter and should be ‘disapproved’, as they were ‘based upon a misunderstanding of the nature of the margin of appreciation doctrine’ and also ‘difficult to reconcile with the structure and purpose of the Human Rights Act’.

He said that following the obiter comments in Re G would have ‘remarkable consequences’ in relation to the court’s power to give effect to legislation in a way which is compatible with the ECHR, under section 3(1) of the Human Rights Act.

Reed said that approach would allow domestic courts ‘to modify unambiguous legislation under section 3(1) so as to bring about a result which departs from parliament’s intention in enacting that legislation, where they consider that parliament’s approach fails to comply with convention rights, even though the European court would itself accept that parliament’s assessment was legitimate. That would constitute a significant encroachment on the principle of parliamentary sovereignty,’ Reed added.

After the ruling, Elan-Cane – who has been represented pro bono by magic circle firm Clifford Chance – announced their intention to take the case to the ECtHR.