2 July 2018

Background

The first respondent mother and the second respondent father were the biological parents of two children, GH and IJ. The children were born as a result of a surrogacy agreement entered into in India. In accordance with the terms of the surrogacy agreement, the surrogate mother, KV and her husband, HV, handed over the children into the care of the first and second respondent after their birth. However, neither the first or second respondent were aware that they had to apply for a parental order, so as a matter of law the children’s parents continued to be KV and HV, albeit KV and HV made no attempt to play any role in the children’s lives. Despite a number of applications by the respondents seeking parental responsibility they were unable to rectify the position.

In 2014, the respondents divorced. The first respondent alleged that during the course of the relationship the second respondent had subjected her to verbal, physical and serious sexual abuse. The second respondent had mental health issues and was periodically prescribed with medication for the same. After the respondents’ marriage ended, the first respondent entered into a relationship with the applicant, AB. By 2015, the children were living with the first respondent and AB in the UK. Proceedings commenced when AB made an application for a parental responsibility order in respect of both children. That application was withdrawn, however, the matter returned to court, with the parties seeking a number of orders including: (i) the applicant and the first respondent’s joint applications to make the children wards of court; (ii) a letter requesting the court to consider granting the second respondent parental responsibility for both children.

Issues and decisions

Whether a parental order should be granted by court.

Neither the first respondent nor the second respondent were able to satisfy the conditions for a parental order laid out in s 54 of the Human Fertilisation and Embryology Act 2008 (see [40] of the judgment).

Further, the provisions of s 4 of the Children Act 1989 (ChA 1989) exclusively referred to the term ‘father’ and not in addition or alternatively a ‘biological parent’. As the second respondent was not in law the father of the children, he could not acquire parental responsibility under the ChA 1989 (see [46] of the judgment).

Furthermore, under the provisions of the ChA 1989, s 4(a), the applicant was not married to a person who was, in law, the mother or the parent of the children, accordingly, the court had no power to make a parental responsibility order in his favour (see [47], [48] of the judgment).

Accordingly, only the surrogate mother and her husband were to be treated as the mother and father of the children (see [45] of the judgment).

The welfare best interests of the twins required, among other things, that: (i) they be made wards of court for the time being; (ii) the deemed application for a parental responsibility order by the second respondent be dismissed; (iii) an order be made restricting the exercise of the parental responsibility of the surrogate mother and her husband (see [73] of the judgment).

G (children) (residence: same-sex partner), Re [2006] 4 All ER 241 considered; A v B and C (lesbian co-parents: role of father) [2012] 2 FLR 607 considered; G (Children) (Shared residence order: biological mother of donor egg children), Re [2014] All ER (D) 238 (Mar) considered; X (A Child) (Surrogacy: Time limit), Re [2014] All ER (D) 48 (Oct) considered; JP v LP (surrogacy arrangement: wardship) [2015] 1 All ER 266 considered; Re E-R (a child) (Child arrangements order: existence of natural parent presumption) [2015] All ER (D) 203 (Apr) considered; F v S [2016] EWFC 70 considered; C v E [2016] All ER (D) 33 (Nov) considered; M v F and others [2017] All ER (D) 111 (Aug) considered.

Per curiam: The absurdity of the law not recognising the first and second respondent as the mother and the father of these children is plain. The losers are predominantly the children who do not have their biological parentage recognised in law. I find myself extremely frustrated, as no doubt are the first and second respondents, that I am prevented, without any obvious good, legal or policy reason from making orders which explicitly recognise them as the legal mother and the legal father of these children. Instead, I am forced, as have other judges before me, to construct a set of orders to secure the welfare of the children which fall very far short of the transformative effect of a parental order (see [74]-[76] of the judgment).

Mr T Wilson appeared on behalf of the applicant.

Mr R Jones appeared on behalf of the first respondent.

Ms M Carew appeared on behalf of the children

Paul Mclachlan Barrister.

In the case of two children, born pursuant to a surrogacy agreement, it was not possible to grant a parental order either in favour of the respondent parents, or the applicant stepfather. Accordingly, the Family Division, in granting various orders, made the children wards of court.

Background

The appellants were a different sex couple who wished to enter into a legally recognised relationship. They had a conscientious objection to marriage and wanted to have a civil partnership with one another. However, the Civil Partnership Act 2004 (the CPA 2004) was designed for same sex couples only.

The appellants sought judicial review of the government’s failure to extend civil partnerships to different sex couples, arguing that the introduction of the Marriage (Same Sex Couples) Act 2013 (the Marriage (Same Sex Couples) Act 2013 (the M(SSC)A 2013) rendered the provisions of the CPA 2004, which confined the availability of civil partnerships to same sex couples (ss 1 and 3), incompatible with art 8, read with art 14, of the European Convention on Human Rights. The judge dismissed the application, accepting the respondent Secretary of State’s argument that art 8 was not engaged (see [2016] 4 All ER 421). The Court of Appeal, Civil Division, rejected that argument, but held that the interference with the appellants’ rights under art 8, read together with art 14 was, at least for the time being, justified.

The appellants appealed. They sought a declaration that the CPA 2004 ss 1 and 3, to the extent that they precluded a different sex couple from entering into a civil partnership, infringed their rights under art 14 taken with art 8 of the Convention. The appellants also sought a declaration of incompatibility under s 4 of the Human Rights Act 1998 (the HRA 1998).

Appeal allowed.

Issues and decisions

(1) Whether the inequality of treatment of heterosexual couples was justified. In particular, whether justification of the inequality included consideration of the period of time during which, the government claimed, it was necessary to investigate how best to eliminate the inequality or whether the justification had to be directed exclusively to the very existence of the discrimination.

A national court had to confront the interference with a Convention right and decide whether the justification claimed for it had been made out. It could not avoid that obligation by reference to a margin of appreciation to be allowed the government or Parliament, at least not in the sense that the expression had been used by the European Court of Human Rights (the ECtHR). The court might, of course, decide that a measure of latitude should be permitted in appropriate cases (see [29] of the judgment).

In as much as it could be suggested that ‘a margin of discretion’ was analogous to the margin of appreciation applied by the ECtHR, it had to be noted that, even on the supranational plane, the margin in cases where distinctions were made on the ground of sexual orientation was narrow. The margin of discretion available to the government and Parliament in that instance, if it existed at all, had to be commensurately narrow. Further, where the difference in treatment was based on sexual orientation, a court had to apply strict scrutiny to the assessment of any asserted justification, and particularly convincing and weighty reasons to justify it were required (see [32] of the judgment).

It was for the government and Parliament to show that it was necessary, in order to achieve the aim of having time to consider what to do about the difference in treatment between same sex and different sex couples brought about by the M(SSC)A 2013, to exclude different sex couples from the CPA 2004. It was understandable why the government might have wished to maintain the status quo while considering various options. However, that was a far cry from saying that it was necessary to exclude different sex couples from the institution of civil partnership (see [39] of the judgment).

It should be made unequivocally clear that the government had to eliminate the inequality of treatment immediately. That could have been done either by abolishing civil partnerships or by instantaneously extending them to different sex couples. If the government had chosen one of those options, it might have been theoretically possible to then assemble information which could have influenced its longer term decision as to what to do with the institution of civil partnerships. However, that did not derogate from the central finding that taking time to evaluate whether to abolish or extend could never amount to a legitimate aim for the continuance of the discrimination. The legitimate aim had to be connected to the justification for discrimination and, plainly, time for evaluation did not sound on that. It could not be a legitimate aim for continuing to discriminate (see [50] of the judgment).

The government and Parliament had to be taken to have realised that, when the M(SSC)A 2013 had come into force, an inequality of treatment would inevitably arise. It could only be inferred, that before the judgments of the Court of Appeal had been handed down, the government had not considered that steps had needed to be taken to eliminate unlawful discrimination. The decision to carry out investigations as to the way forward had to have been related to circumstances unconnected with the government’s perception of its obligations under the Convention. Accordingly, it had to be assumed that the government and Parliament had not recognised that that inequality would engage art 8. However, that was not relevant. What had to be shown was that it had been necessary to exclude different sex couples from civil partnerships for an indefinite period, while inquiries, consultations and surveys had been conducted, and a decision based on those could be made. That necessity had not been established (see [34], [40] of the judgment).

Accordingly, tolerance of the discrimination while the respondent sorted out how to deal with it could not be characterised as a legitimate aim. Alternatively, there would be a rational connection between the aim (if legitimate) and the delay, but there was no hesitation in concluding that a fair balance between the appellants’ rights and the interests of the community had not been struck (see [42], [47], [52] of the judgment).

P (adoption: unmarried couple), Re [2008] 2 FLR 1084 applied; R (on the application of Aguilar Quila) v Secretary of State for the Home Department; R (on the application of Bibi) v same [2012] 1 All ER 1011 applied; R v DPP, ex p Kebilene [1999] All ER (D) 1170 considered; M v Secretary of State for Work and Pensions [2006] 4 All ER 929 considered; Schalk v Austria (Application No 30141/04) (2010) 29 BHRC 396 considered; Vallianatos v Greece (Application Nos 29381/09 and 32684/09) (2013) 36 BHRC 149 considered.

(2) Whether the court should refrain from making a declaration of incompatibility because the decision not to take action about extending or abolishing civil partnerships had been one which fell squarely within the field of sensitive social policy which the democratically-elected legislature had been pre-eminently suited to make.

The respondent’s argument had significantly less force if the decision not to take action at present did not pursue a legitimate aim, but it nevertheless had to be considered for what principled basis it might have. The starting point was that the court was not obliged to make a declaration of incompatibility when it found that a particular provision was not compatible with a Convention right (see [55], [56] of the judgment).

R (on the application of Nicklinson and another) v Ministry of Justice; R (on the application of AM) v Director of Public Prosecutions ([2014] 3 All ER 843) did not set a precedent for reticence in the present case. The amendment to a Private Members Bill, which proposed extension of civil partnerships to different sex couples and which the government had agreed, did no more than formalise the consultation process to which it had already been committed. It did not herald any imminent change in the law to remove the admitted inequality of treatment. Even if it had, that would not constitute an inevitable contraindication to a declaration of incompatibility (see [58] of the judgment).

There was no reason that the court should feel, in any way, reticent about the making of a declaration of incompatibility. To the contrary, it had been given the power under the HRA 1998 s 4 to do so and, in the circumstances of the case, it would be wrong not to have recourse to that power (see [61] of the judgment).

It would be declared that the CPA 2004 ss 1 and 3, to the extent that they precluded a different sex couple from entering into a civil partnership, were incompatible with art 14, taken in conjunction with art 8, of the Convention (see [62] of the judgment).

Bellinger v Bellinger (Lord Chancellor intervening) [2003] 2 All ER 593 applied; R (on the application of Nicklinson) v Ministry of Justice; R (on the application of AM) v DPP [2014] 3 All ER 843 considered.

Decision of Court of Appeal, Civil Division, [2017] 4 All ER 47 Reversed.

Karon Monaghan QC and Sarah Hannett (instructed by Deighton Pierce Glynn Ltd) for the appellants.

James Eadie QC and Dan Squires QC (instructed by the Government Legal Department) for the Secretary of State.

Karina Weller - Solicitor (NSW) (non-practising).

Sections 1 and 3 of the Civil Partnership Act 2004, to the extent that they precluded a different sex couple from entering into a civil partnership, were incompatible with art 14, taken in conjunction with art 8, of the European Convention on Human Rights. The Supreme Court, in allowing the appellants’ appeal, made unequivocally clear that the government had to eliminate the inequality of treatment immediately and that taking time to evaluate whether to abolish or extend civil partnerships could never amount to a legitimate aim for the continuance of the discrimination.

Background

The applicant, MB, was born a male in 1948 and married in 1974. She began to live as a woman in 1991 and underwent sex reassignment surgery in 1995. MB did not, however, hold a full certificate of recognition of her change of gender, since, pursuant to the national legislation at issue in the main proceedings, in order for that certificate to be granted her marriage had to be annulled (see ss 4(3), 5(1) of the UK Gender Recognition Act 2004). She and her wife wished to remain married for religious reasons.

In 2008, MB, having reached the age of 60, the age at which women born before 6 April 1950 could, under national law, receive a ‘Category A’ retirement pension from the state, applied for such a pension as from that age by virtue of the contributions paid into the state pension scheme while she had been working. Her application was rejected on the ground that, in the absence of a full gender recognition certificate, MB could not be treated as a woman for the purposes of determining her statutory pensionable age. The action brought by MB against that decision was dismissed by the First-tier Tribunal (Administrative Chamber), the Upper Tribunal (Administrative Appeals Chamber) and the Court of Appeal, Civil Division.

MB appealed to the Supreme Court of the United Kingdom (the referring court), claiming that the national legislation at issue in the main proceedings was discriminatory on grounds of sex, which was prohibited by art 4(1) of Directive (EEC) 79/7 (art 4(1). According to the information provided in the order for reference, MB fulfilled the physical, social and psychological criteria provided by the national legislation on civil status for the purposes of a legal recognition of a change of gender. The referring court pointed out, however, that, at the time of the facts giving rise to the dispute, the national legislation had made such recognition, as well as the issuing of the full gender recognition certificate, conditional on the annulment of any marriage entered into before such a change had taken place. According to the referring court, such annulment was also required in order for a person who had changed gender, such as MB, to access the state retirement pension as from the statutory pensionable age of persons of the gender acquired by that person.

Before the referring court, the respondent Secretary of State for Work and Pensions (the Secretary of State) submitted that, according to the Court’s caselaw, it was for the member states to determine the conditions under which a person’s change of gender could be legally recognised. He submitted that those conditions could not be limited to social, physical and psychological criteria but could also include criteria relating to marital status. He argued, among other things, that the objective of maintaining the traditional concept of marriage as being a union between a man and a woman could justify making recognition of a change of gender subject to such a condition.

In those circumstances, the referring court stayed the proceedings and referred a question to the Court of Justice for a preliminary ruling.

Issues and decisions

Whether Directive 79/7, in particular the first indent of art 4(1), read in conjunction with the third indent of arts 3(1)(a) and 7(1)(a) thereof, should be interpreted as precluding national legislation that required a person who had changed gender not only to fulfil physical, social and psychological criteria but also to satisfy the condition of not being married to a person of the gender that he or she had acquired as a result of that change, in order to be able to claim a state retirement pension as from the statutory pensionable age applicable to persons of that acquired gender.

According to the Court’s caselaw, national legislation making eligibility for a pension benefit subject to a condition relating to civil status could not be placed outside the scope of the principle of non-discrimination on grounds of sex set out in art 157 of the Treaty on the Functioning of the European Union (TFEU) in the area of workers’ remuneration. It followed that art 4(1), which implemented the principle of non-discrimination on grounds of sex as regards social security, should be complied with by the member states when they exercised their powers in the area of civil status. In particular, the first indent of art 4(1), read in conjunction with the third indent of art 3(1)(a) of that directive, prohibited all discrimination on grounds of sex as regards, among other things, the conditions for access to statutory schemes ensuring protection against the risks of old age (see [30]-[33] of the judgment).

As was clear from art 2(1)(a) of Directive (EC) 2006/54, there was direct discrimination based on sex if one person was treated less favourably on grounds of sex than another person was, had been or would be treated in a comparable situation. That concept had to be understood in the same way in the context of Directive 79/7. In accordance with the Court’s settled case-law, the scope of the latter directive, in view of its purpose and the nature of the rights which it sought to safeguard, was also such as to apply to discrimination arising from gender reassignment. In that regard, although, it was for the member states to establish the conditions for legal recognition of a person’s change of gender, the fact remained that, for the purposes of the application of Directive 79/7, persons who had lived for a significant period as persons of a gender other than their birth gender and who had undergone a gender reassignment operation should be considered to have changed gender (see [34], [35] of the judgment).

In the present case, the national legislation at issue treated less favourably a person who had changed gender after marrying than it treated a person who had retained his or her birth gender and was married. Such less favourable treatment was based on sex and could constitute direct discrimination within the meaning of art 4(1). Further, in the light of the subject matter of the retirement pension and the conditions under which it was granted, the situation of a person who had changed gender after marrying and that of a person who had kept his or her birth gender and was married were comparable. Consequently, the national legislation at issue accorded less favourable treatment, directly based on sex, to a person who had changed gender after marrying, than that accorded to a person who had kept his or her birth gender and was married, even though those persons were in comparable situations.

(see [37], [38], [44], [48] of the judgment).

Further, according to the Court’s caselaw, a derogation from the prohibition, set out in art 4(1), of all direct discrimination on grounds of sex was possible only in the situations exhaustively set out in the provisions of that directive. As it was, the objective invoked by the UK government did not correspond to any of the derogations allowed by that directive. With more specific regard to the derogation provided for in art 7(1)(a) of Directive 79/7, the Court had already held that it did not allow member states to treat differently persons who had changed gender after marrying and persons who had kept their birth gender and were married, with regard to the age of entitlement to a state retirement pension. It followed that the national legislation at issue constituted direct discrimination on grounds of sex and was, therefore, prohibited by Directive 79/7 (see [50]-[52] of the judgment).

The answer to the question referred was: yes (see [53] of the judgment).

KB v National Health Service Pensions Agency: C-117/01 [2004] IRLR 240 considered; Richards v Secretary of State for Work and Pensions: C-423/04 [2006] All ER (EC) 895 considered; Vergani v Agenzia delle Entrate, Ufficio di Arona: C-207/04 [2006] All ER (EC) 813 considered.

Neneh Munu Barrister.

Council Directive (EEC) 79/7, in particular the first indent of art 4(1), read in conjunction with the third indent of arts 3(1)(a) and 7(1)(a) thereof, should be interpreted as precluding national legislation which required a person who had changed gender not only to fulfil physical, social and psychological criteria but also to satisfy the condition of not being married to a person of the gender that he or she had acquired a result of that change, in order to be able to claim a state retirement pension as from the statutory pensionable age applicable to persons of his or her acquired gender. The Court of Justice of the European Union so held in proceedings concerning the refusal by the Secretary of State for Work and Pensions (UK) to grant the applicant a state retirement pension as from the statutory pensionable age for persons of the gender that she had acquired as a result of a change of gender.

Section 74 of the National Insurance Corporation Act 2000 provides so far as material: ‘(1) Where (a) any execution has been levied against the property whether movable or immovable, of an employer, in respect of a judgment against him or her, and any such property has been seized or sold or otherwise realised in pursuance of such execution; or (b) on the application of a secured creditor, the property, whether moveable or immovable, of an employer has been sold, any sums due as contributions by such employer shall rank as a privileged debt pari passu with state taxes without the necessity for registration thereof.’

Winmark Ltd (the company) granted fixed and floating charges over its assets and undertaking to the Caribbean Banking Corporation Ltd (now RBTT Bank Caribbean Ltd (the bank)) to secure repayment of an advance of EC$12.7m and the interest due thereon. The fixed charges included a hypothec over land in St Lucia which was registered in the Land Registry. The company defaulted on its obligations under the loans and on 1 October 2004, the bank appointed a receiver. At that date the company was in arrears with its payments of contributions due under the National Insurance Corporation Act 2000 in respect of its employees. On 1 February 2005, the National Insurance Corporation (the corporation) commenced proceedings against the company to recover EC$505,564.19 arrears of contributions and a surcharge for late payment. A certificate issued by the comptroller was registered the same day. The general principle in art 967 of the St. Lucia Civil Code was that all real rights took effect on registration. Article 1969 provided that certain specified privileges were ‘exempt from the formality of registration’. However, s 74 of the Act, which was in force at the date on which the bank had been granted its hypothec, stated that the privilege for contributions ‘shall rank as a privileged debt’, with the stated priority, without the necessity for registration thereof. On the latter basis, the master held that the corporation’s claim took priority over the bank’s hypothec. The Court of Appeal reversed his decision, having found that the effect of s 74 was to give the corporation rights over property in which the bank, by reason of its hypothec, had a beneficial interest, thereby contravening the prohibition in s 6 of the Constitution of St. Lucia on the compulsory taking of property. The corporation appealed to the Privy Council.

It fell to be determined whether: (i) the corporation’s claim took priority over the bank’s rights under its hypothec over the company’s property; and (ii) whether the effect of s 74 of the Act contravened the prohibition in s 6 of the Constitution of St. Lucia on the compulsory taking of property.

The appeal would be allowed.

(1) Section 74 of the Act had to be interpreted in the light of the provisions of the St. Lucia Civil Code and the general principles of French law relating to security interests in land. When s 74 of the Act described the liability to pay contributions as a ‘privileged debt’, it was clearly creating a privilege within the meaning of art 1877 of the Code. It was settled law that certain individuals were preferred creditors and thus had legally protected privileges which entitled the individual to payment in preference to secured creditors such as the holders of hypothecs. Prima facie, the privileged debt took priority to the hypothec (see [4] – [7] of the judgment).

Polinere v Felicien [2000] 4 LRC 176 considered.

Principle: (2) It was clear from the Code that neither a privilege nor a hypothec displaced the debtor’s ownership of his immovable property. A privilege was only ‘a right which a creditor had of being preferred to other creditors’ (article 1878), and, pursuant to art 1938, hypothecs did not divest the debtor of the hypothecated property. Both hypothecs and privileges were charges, namely real rights for the purpose of providing security over someone else’s property (see [21] of the judgment).

In the instant case, at the time that the bank had been granted its hypothec, s 74 was in force. Accordingly, the corporation’s claim took priority over the bank’s hypothec. The bank never obtained any rights over the company’s property which was not subject to the priority accorded by statute to any claims for contributions which might exist when the bank’s security came to be enforced. It followed that s 74 did not deprive the bank of any property and s 6 of the Constitution had no application in the instant case (see [11], [23] of the judgment).

The judgment of the master would be restored (see [24] of the judgment).

Carla Dougan-Bacchus Barrister.

Privy Council: the National Insurance Corporation of St. Lucia’s claim for payment of arrears of employees’ contributions took priority over a bank’s hypothec where, at the time that the bank had been granted its hypothec, s 74 of the National Insurance Corporation Act 2000, under which the liability to pay contributions was a ‘privileged debt’, was in force. Neither a privilege nor a hypothec displaced a debtor’s ownership of his immovable property. The appeal was allowed.

Background

The claimant was born with female physical sexual characteristics and was, therefore, registered as female at birth. However, throughout childhood, the claimant grew increasingly detached from the gender which had been assigned at birth. The claimant decided to undergo a bi-lateral mastectomy and a total hysterectomy. Those procedures were successful in assisting the claimant to accept a non-gendered identity.

The claimant issued judicial review proceedings, challenging the lawfulness of the current policy of Her Majesty’s Passport Office (HMPO) to require those who applied for the issue of a passport to declare whether their gender was either male or female, and that a passport would only be issued bearing an ‘M’ or ‘F’ indicator in the sex field, rather than an ‘X’, indicating an unspecified sex.

Application dismissed.

Issues and decisions

(1) Whether the policy was a breach of the claimant’s right to respect for private life, under art 8 of the European Convention on Human Rights.

In assessing the existence and scope of any positive obligation, the pre-eminent consideration was the striking of a fair balance between the competing interests of the individual and the community as a whole. However, in making those assessments, the state’s margin of appreciation was a relevant consideration, albeit the significance of it would depend upon the circumstances of the particular case. In some cases, the margin might be restricted, whereas in others it might be wide, dependent upon factors such as the importance of the issue to the individual’s private life and the extent of any consensus within the other member states, particularly in relation to controversial ethical or moral issues (see [112] of the judgment).

The claimant’s identification was one relating to gender and it was one encompassed within the expression ‘gender identification’. In those circumstances, the claimant’s art 8 rights were engaged so that the claimant’s right to respect for private life would include a right to respect for the claimant’s identification as non-gendered (see [107], [108] of the judgment).

However, the effect of the various factors weighed in the balance led to the conclusion that, at present, the claimant’s art 8 right to respect for personal life did not encompass a positive obligation on the part of the government to permit the claimant to apply for, and be issued, with a passport with an X marker in the gender/sex field signifying that the claimant’s gender was unspecified. Therefore, the current policy of HMPO not to permit the claimant to apply for, or be issued with, a passport with X in the gender/sex field did not amount to an unlawful breach of the claimant’s art 8 rights to respect for private life (see [131] of the judgment).

R (on the application of Ullah) v Special Adjudicator; Do v Secretary of State for the Home Department [2004] 3 All ER 785 applied; Rees v United Kingdom (Application 9532/81) [1986] ECHR 9532/81 considered; van Kuck v Germany (Application 35968/97) (2003) 37 EHRR 973 considered; Hamalainen v Finland (Application No. 37359/09) (2014) 37 BHRC 55 considered.

(2) Whether the policy was a breach of the claimant’s rights under art 14 of the Convention not to be discriminated against.

Due to the claimant having chosen to challenge the current HMPO policy which was limited to the complaint concerning the lack of X markers in the gender/sex field, it was arguable that there was an equality of treatment between two groups, as neither the claimant nor those who identified within the binary concept of gender were able either to apply for, or have, a passport issued to them which did not specify their gender (see [134] of the judgment).

Given the conclusions in relation to the question of the existence and scope of any positive obligations presently owed to the claimant under art 8, it was inevitable that, in determining whether the difference in treatment was objectively justifiable, the answer would be that any such difference in treatment was objectively justifiable for the same reasons and, consequently, the current policy of the HMPO in relation to the issuing of X marked passports did not amount to unlawful discrimination under art 14 (see [135] of the judgment).

Ghaidan v Godin-Mendoza [2004] 2 FLR 600 applied.

(3) Whether the policy was irrational.

For the same reasons as provided under art 8, the policy was both rational and proportionate (see [136] of the judgment).

(4) Whether HMPO had failed to take into account relevant considerations and had wrongly taken into account irrelevant considerations.

There was no evidence that the matters the claimant contended HMPO had failed to take into account had not been ones taken into account by HMPO. Not only did the correspondence show that HMPO and its predecessor had had the claimant’s strength of feeling upon the issue well in mind, but it was clear that HMPO had been aware that the UK already permitted X marked passport holders, such as those from Australia, to enter the UK (see [143] of the judgment).

In relation to those matters which the claimant submitted HMPO had wrongfully taken into account, there was nothing which HMPO had erroneously taken into account. It had been clear that there was no legislative change required to permit applicants not to specify their sex/gender on their passports. Further, although other legislative change might or might not be required if the current HMPO policy was altered, as the government had been entitled to consider any alteration in the light of its wider implications across government as a whole, the other factors of which the claimant was critical were ones which HMPO had been entitled to take into account as potential issues to be considered during the course of the review (see [144] of the judgment).

R (on the application of National Association of Health Stores) v Secretary of State for Health [2005] All ER (D) 324 (Feb) considered.

Kate Gallafent QC and Tom Mountford (instructed by Clifford Chance LLP) for the claimant.

James Eadie QC and Sarah Hannett (instructed by the Government Legal Department) for the Secretary of State.

Flora Robertson (instructed by MacFarlanes LLP) for Human Rights Watch, as intervener.

Karina Weller - Solicitor (NSW) (non-practising).

Her Majesty’s Passport Office’s policy to require those who applied for the issue of a passport to declare whether their gender was either male or female, rather indicating an unspecified sex, did not breach arts 8 or 14 of the European Convention on Human Rights. The Administrative Court, in dismissing the claimant’s application for judicial review, further held that the policy was not irrational, relevant matters had been considered and irrelevant matters had not been taken into account.