THE BLOG

Is the UK Government About to U-Turn on 'X' Passports?

29/01/2016 21:50 GMT | Updated 27/01/2017 10:12 GMT

An announcement last July that 'Transgender Equality' was to be the focus of a fledgling Women and Equalities Committee's inaugural inquiry took many people by surprise.

On 14 January 2016, after having received more than 250 written submissions and conducting five oral evidence panel sessions on a range of issues, the Select Committee duly reported its findings and key recommendations.

One particular unequivocal recommendation predictably generated attention - that "The UK must follow Australia's lead in introducing an option to record gender (sic) as "X" on a passport."

The Committee's recommendation was significant because the unacceptable lack of adequate provision to record the identities of individuals who cannot be defined in terms of male and female was finally acknowledged and in sharp contrast to current Government policy ".....it is not Government policy to identify such people for the purpose of issuing non-gender-specific official documents".

More curious is that Committee Chair Maria Miller previously held a key ministerial role and had ultimate responsibility over an extensive 'Equalities' portfolio for eighteen months between 2012-2014 while Government was furiously backpedalling behind the scenes to renege upon an earlier commitment to consider proposals for the issuance of 'X' passports in the UK. Government backpedalled so furiously that a policy review by the former Identity and Passport Service, now HM Passport Office (HMPO) was effectively nothing more than a sham.

The UK Government's rejection of 'X' passports appeared on the surface to have been a decision taken unilaterally by HMPO.

I was often critical of the former Equalities Minister over what happened on her watch. That Maria Miller has emerged as an 'X' passports champion is surreal given the history. Did she really not know about the sham policy review? Was she not informed about civil servants' failure to properly engage with key stakeholders on 'X'? Incredible it may be, but it must be assumed for now that Maria Miller was to some degree unaware of these events.

The Committee's endorsement of 'X' passports was a saccharine punch embittered through a more opaque recommendation for "a wholesale review of issues" and that "The Government must look into the need to create a [third] legal category ...... and the full implications of this." with an admission the issues were "beyond the scope of our inquiry".

But there was nothing opaque about 'X' passports. Should Government support the Committee's recommendation then 'X' passports are a done deal but, as is often the case, the truth hides behind smoke and mirrors.

I believe the UK Government had to indicate openness at this time towards the introduction of 'X' passports because HMPO's discriminatory policy was about to come under legal scrutiny through a proposed judicial review application.

I approached the law firm Clifford Chance LLP in 2013 because political negotiation had failed. Legal intervention was my final recourse in subjecting the UK's discriminatory passport policy to challenge.

A detailed report was compiled by Clifford Chance and submitted to HMPO in February 2015. The report outlined compelling reasons why 'X' passports should be accessible to non-gendered people. No substantive response was received. The report was resubmitted in late April for the personal attention of newly appointed Director General Mark Thomson and again there was no substantive response.

On 30 June 2015 a pre-action protocol letter was delivered in advance of the proposed judicial review application. With fourteen days to provide a substantive response, HMPO returned a series of 'holding' responses and ultimately failed to meet its self-determined deadline of 28 August. In the meantime, on 27 July there came the unexpected announcement of the Select Committee's 'Transgender Equality' inquiry.

HMPO responded defiantly to the Clifford Chance report and pre-action letter in a communication received by my legal team on 9 September 2015 despite the ongoing inquiry and inevitability that legal action would follow.

In October 2014 HMPO was stripped of its semi-autonomous 'executive agency' status and lost the independence that sometimes allowed decision making responsibilities to become blurred. HMPO is now part of the Home Office therefore Government cannot remain distanced on this issue.

We now have the Committee's wholehearted recommendation of 'X' passports while HMPO civil servants remain firmly opposed. HMPO's position is untenable given the overriding need for non gender-specific documentation as highlighted in the Committee's report. But the Committee does not possess executive powers. Maria Miller has effectively distanced herself from past events while HMPO favours the upholding of a shameful discriminatory policy.

Clifford Chance recently delivered a further letter that effectively afforded HMPO a final opportunity to do the right thing before judicial review proceedings are issued.

The Government could take upwards of two months to respond to the Committee's report. Will the Government agree with the Committee's recommendation that the UK "must" provide option 'X'? For more info www.elancane.livejournal.com