The Supreme Court’s Judgment in Elan-Cane: Non-gendered Identity and the Relationship Between the Human Rights Act and the European Convention

1. In R (Elan-Cane) v Secretary of State for the Home Department (‘Elan-Cane’), the Supreme Court was faced with a challenge to a policy of Her Majesty’s Passport Office (HMPO), an agency of the Home Office which issues passports at the discretion of the respondent Secretary of State in the exercise of the Royal Prerogative, which required the appellant to state their gender as either male or female in order to obtain a passport. The Court was required to determine whether HMPO’s policy was incompatible with the European Convention on Human Rights (‘the Convention’), and (irrespective of the answer to the first question) whether HMPO’s policy nonetheless breached the Secretary of State’s obligations under the Human Rights Act 1998 (‘the Act’). Lord Reed PSC, who delivered a judgment with which all other members of the Court agreed, answered both questions in the negative.