R v Secretary of State for the Home Department

Facts

The claimant is a person who does not identify as male or female, and who applied for a United Kingdom passport that did not state either marker. The policy of the Home Secretary was to issue passports which stated the sex of the holder as male or female only. The claimant argued that this policy breached their rights under Articles 8 and 14 of the Convention.

History

The High Court dismissed the claim. The Court of Appeal also rejected the challenge, and the claimant appealed to the Supreme Court.

Issue

Whether Article 8 of the Convention places a positive obligation on the state to provide for a passport without a gendered marker, in order to respect the private life of non-gendered persons, and whether the policy discriminated contrary to Article 14.

Held

Appeal dismissed. The policy of the Home Secretary did not breach Article 8, taken alone or with Article 14.

Ratio

• Article 8 protects the right of a person to respect for private life, which includes the identity of the person, but it does not in these circumstances impose a positive obligation on the state to create a legal category of non-gendered status or to issue passports with that marker.
• The claim was about the recognition by the state of a legal status and the provision of a particular document, which engages positive obligations, and those obligations are subject to a wide margin of appreciation, particularly where there is no consensus among Convention states and the issue has broad social implications.
• The complaint under Article 14, taken together with Article 8, also failed.

Key reasoning

• The court distinguished a negative obligation not to interfere with private life from a positive obligation to act, and treated the claim as one for positive action, since the state had not prevented the claimant from living as a non-gendered person.
• The question touched on the legal recognition of gender across many areas of law, so a change to passports would raise wider policy issues, which are for the executive and Parliament to resolve.
• The court acknowledged the importance of identity to the claimant, but held that this did not convert the claim into one requiring the court to direct the creation of a new status.

Where it fits in the module

In the study of rights protection under the Human Rights Act framework, the case illustrates the distinction between negative and positive obligations and the deference given to the political branches in sensitive social policy. It invites discussion on the constitutional division of function between courts and Parliament in expanding rights.

Criticisms

• The distinction between negative and positive obligations is hard to draw, since the refusal to issue a document is also an act of the state which affects private life.
• Relying on the absence of consensus and the margin of appreciation may leave minorities without a remedy in domestic courts, when the Human Rights Act was intended to make Convention rights effective at home.
• The decision defers to concerns about wider consequences without requiring evidence that issuing a third marker would cause serious difficulties for the system, which weakens the proportionality analysis.