If recognising non-binary identities was a league table, the UK would not be on it. The countries that would be, however, are: Australia, Argentina, The Netherlands, Bangladesh, Pakistan, the USA, Chile, Iceland, Nepal, Colombia, India, Denmark, Germany, Malta, New Zealand, Mexico, Canada, and Costa Rica.
Before we continue, let’s be clear – transphobia exists in every single one of those 18 countries, to various degrees. Unquestionably, having an X option on a passport does not eradicate transphobia. That is not to say there isn’t a sense of validation and acknowledgment that comes with being able to have your gender legally recognised.
Something that currently, in the UK, does not exist. The Gender Recognition Act 2004, UK legislation, allows a person to change the sex recorded on their birth certificate, either from ‘male’ to ‘female’ or vice versa. It makes no provision for the recognition of any other gender.
The most recent case in the campaign to have a non-binary gender identity option included in British passports failed in the Court of Appeal. In March 2020 the Court of Appeal in R (Elan-Cane) v Secretary of State for the Home Department unanimously dismissed the appeal against the Home Office’s refusal to issue gender neutral passports.
A long road ahead
The prospect of the UK recognising non-binary identities in the near future looks bleak, and with the judiciary refusing to take on the challenge, it is likely only a public campaign with real momentum, that could change the reality for those who are non-binary across the UK. Until then, the UK will continue to lag behind other countries in its recognition of non-binary identities.
Nepal is one of those countries, with the case of Sunil Babu Pant & others vs Government of Nepal & others giving the Supreme Court of Nepal in 2007 an opportunity it would not waste. Unlike our own judiciary's conservatism, the highest court in Nepal made seismic changes to the landscape for non-binary people in their country. Suddenly, Nepal allowed non-binary people the right to self-identification. Although bureaucratic hurdles made those changes stagnate and stall, in October 2015, Bhumika Shrestha became the first Nepali citizen to travel abroad using a passport marked with ‘O’, for ‘other’.
In contrast, the UK’s own Court of Appeal in Elan-Cane was unwilling to order reform, dismissing the appeal. Lady Justice King agreed with the conclusions of the previous court that heard the case, and also suggested that removing the requirement for gender specification on passport applications might raise further questions on the purpose of requesting gender information on any official documents. This is an important point, but not for the reasons, respectfully, that Lady Justice King intended. This misunderstanding, we argue, lies in two parts.
The first being the insinuation that ‘X’ equates to ‘absent’, or that it does not refer to an identity at all, but rather the lack of one. In reality, ‘X’ can refer to a myriad of identities, including genderqueer, non-binary, and other gender non-conforming identities. Secondly, as Lady Justice King says herself, an 'X' marker on a passport could bring into question the necessity of having any gender marker at all. And frankly, we should question whether gender markers are needed on official documentation. If the simple option of ‘X’ can topple the logic of a whole system, then it might be time to reassess that system.
What’s gender got to do with it?
Make no mistake, the recognition of non-binary identities would be a huge step forward in the fight for LGBTQ+ rights in the UK, but it does raise the wider question of why gender information is even requested on official documents in the first place.
In fact, certain countries such as the Netherlands, have trialled gender free official documentation, acknowledging that gender information is mostly unnecessary. They have made plans to remove gender from national identity cards by 2025, recognising its ‘limited value on official identification documents’.
There is an argument that having ‘X’ on a passport could potentially make one vulnerable to discrimination, an argument that is strengthened anecdotally by non-binary people sharing that they often choose a binary gender in order to avoid such a risk. A removal of any gender marker on a passport would avoid this scenario, and in general, there are in fact very few reasons to justify the need for a gender marker on a passport. Often, the only argument made is so that airport staff can have an indication as to what pronouns you might identify with.
Whether the option is an ‘X’ marker, or no gender at all, it is evident that the UK falls very short of anything near a system that values, recognises, and provides for non-binary identities.
Comments