Mariza Avgeri, Associate Lecturer in Law, Culture and Society at The Open University, England, analyzes the legal regulation of non-binary identities and bi-genderism, with emphasis on the UK Elan-Cane case...
Most people in our societies identify as male or female, a man or a woman; but there have been people around the globe in different eras that have claimed other identities regarding their gender identity and have put this binary under challenge. Alternative genders across the globe demonstrate examples of cross-cultural gender diversity. In a number of Native American societies for example, different gender systems have been documented, which include more than two options for gender identification. In India, ‘hijras’ are accepted as a third gender. In the First Nations ‘two-spirit’ is a non-binary gender category, and in Hawaii ‘mahuwahine’ is a culturally accepted gender form. Gender variance has also been documented in other regions such as Brazil, the Philippines, Polynesia, and Thailand. Perceiving gender as a binary system is a just a feature of some cultures and not a universal classification; it is culturally established within communities by socializing interactions in each one.
Legal gender definitions around the world
Bi-genderism is challenged at a legal level in various jurisdictions. There are developments in several countries that point to a recognition of non-binary identities. For example, in 2011, the Australian Passport office published updated guidelines regarding the issuing of passports with an X gender, which was, till then, a possibility only for individuals with atypical sex characteristics. The X descriptor was extended to encompass not only binary-trans people, but also people transcending binary genders, whether they had proceeded to gender affirmation surgeries or not. In addition, in 2013, the Sex Discrimination Act, 1984 was amended to provide new protections to individuals with diverse sexual orientation, gender identity and sex characteristics in public life. According to the Australian Government Guidelines on the Recognition of Sex and Gender, individuals may identify as a gender other than the one that they were assigned at birth or beyond the gender binary and that should be reflected in the public government records. According to the same guidelines, ‘[t]he X category refers to any person who does not exclusively identify as either male or female, i.e. a person of a non-binary gender’. In New Zealand as well, as from 2012, there is an option for an X descriptor in passports, which is reserved for people who are trans or inter-sex. In the U.S., a number of jurisdictions including Oregon, Washington, California and New York allow for a non-binary gender option on the documents they issue.
In Malta, reforms in gender recognition laws have introduced the ‘X’ category as an option for passports and public documents. In Denmark, where medical prerequisites have been removed for binary legal gender recognition, there is also a provision according to which individuals can change their passport gender marker to ‘X’ upon application, without approval from the Gender Clinic. In Germany on the other hand, in 2018, the government adopted an act providing the possibility for intersex individuals to choose between binary gender markers, ‘diverse’ marker or the removal of gender marker altogether. This act has been criticized, since it does not allow for non-binary individuals to choose this option if they do not have atypical sex characteristics and for that reason re-pathologizes intersex conditions.
Other countries that have introduced non-binary options in their government records are India, Nepal and Bangladesh. On April 15, 2014, a third gender was recognized by the Supreme Court of India. According to the Supreme Court, the third gender refers to transgender people that are neither male nor female and the recognition and acceptance of which does not constitute a social or medical issue, but a human rights’ one. In Nepal, the Supreme Court established a third gender category as well in a landmark decision on December 27, 2007, according to which citizens can choose among three gender options, male, female and ‘others’. The ‘others’ option refers to people identifying as a gender different than the one they were assigned at birth, a fact that will be solely defined by their self-identification. In November 2013, the Bangladeshi government announced the recognition of ‘hijras’, a community of feminine individuals with male sex characteristics counting over 10.000 people in Bangladesh, as a third gender category in public documents in order for their rights to be better protected. On the other hand, according to Human Rights Watch, several abuses and discrepancies have been reported in the process of acquiring the ‘third gender’ marker. Pakistan has also issued in 2017 its first passports with an ‘X’ gender marker, years after its Supreme Court declared that ‘hijra’ could be recognized as a third gender in national identity cards.
The Elan-Cane Case
On 22 June, 2018 the English and Welsh High Court of Justice delivered a landmark judgment on an application relating to the issue of non-gender-specific passport filed by a non-gendered individual. The judgment reflects the changing attitudes towards non-binary genders and their recognition by public bodies. The application was refused, but the rationale of the decision highlights the dynamic development of gender systems that is taking place in the current social configuration.
In the above case, Christie Elan-Cane asked for the issuance of an ‘X’ passport, that would correspond to their non-gendered identification. The claimant, a 60-year-old person assigned female at birth, who grew detached from their gender and performed a series of medical interventions to fit their emotional and psychological development, adopted a non-gendered identity, which they perceive to be a fundamental part of their personality, after having rejected several other terms for their non-binary gender identity. After the applicant asked for a passport without a declaration of being male or female, they were informed that the International Civil Aviation Organisation (ICAO) permitted countries to issue passports with either ‘M’, ‘F’ or ‘X’ in the sex section where ‘X’ indicated ‘unspecified’ sex. Although the applicant underlined the latter fact, the response remained the same in refusing to issue them a passport with an ‘X’ gender marker. The applicant claimed that a declaration of being either male or female in order to acquire a passport in the UK, against the international standards, constituted a degrading and humiliating process that forces individuals to deny their identity.
The Identity and Passport Service (IPS) acknowledged the feelings of the claimant in not identifying as either male or female, but raised technical issues, such as the current computer system, as well as security issues for passports without a gender marker and lack of recognition of non-traditional gender markers at an international level. It also underlined the possibility of acquiring a passport with a binary marker that better corresponds to the individual’s gender, upon submission of medical evidence of transition. It becomes evident that matters challenging social bi-genderism cannot be addressed in isolation from legal frameworks regulating sex or gender in an interrelated and fundamental manner. The judgment makes that clear in dismissing the claim that the Government has a positive obligation under Article 8 ECHR to provide the option of an X marker in passports, based on the fact that ‘[i]t will be necessary for the Government to consider to what extent if any, in an age of increasing social and legal awareness and acceptance of the importance of issues relating to diversity and equality, the recording of an individual’s sex and/or gender in official and other documentation is justified’ and that ‘[i]t will also be necessary to consider the extent to which other identities both within and beyond the binary concept of gender are to be recognised, and if so, whether they are to be self-determined or are to be objectively evidenced’.
Although the claim was refused, the UK courts have recognised for the first time in the body of the judgment that the right to respect for an individual’s private life guaranteed by Article 8 ECHR entails gender identification that could include non-binary individuals and that gender identification as elaborated by the ECtHR in Van Kück does not necessarily refer to ‘transsexuals’. In concluding the UK Court in the Elan Cane case noted that:
“rights afforded to individuals under the ECHR are ones which have to be interpreted in the light of changing conditions and in a dynamic and evolutionary manner. Therefore, not only may the situation amongst the Member and other States alter, but in particular in the present case the claimant will be entitled to scrutinise with care the results of the Government’s current review.”
In view of the above, one must acknowledge the shifting attitudes that are taking place regarding identities that challenge bi-genderism and ideological sex/gender congruence. In a social arena that is regulated according to binary sex/gender categories, non-binary individuals face many challenges and limited protection while challenging deeply rooted socio-cultural significations. On the other hand, there is a growing number of people identifying as non-binary, whose identity is not reflected in man/woman categories as various studies show and it is essential that non-binary people be included in the public discourse on gender identity and transgender phenomena.
Mariza Avgeri is an Associate Lecturer in Law, Culture and Society at the Open University, currently completing her PhD in Law in Maynooth University and working on transgender asylum claims assessment in the EU. She is a holder of the John and Pat Hume Doctoral Award. She has worked as a lawyer, a case worker at the Greek Asylum Service and as a member of the Appels’ Committees. She has participated in many LGBTQ+ and migrant rights’ initiatives and is the creator of the film ‘Trans*it’ on LGBTQ+ asylum claimants.
Suggested citation: Mariza Avgeri, Non-binary People Around the World and the Elan-Cane Case, JURIST – Professional Commentary, July 8, 2021, https://www.jurist.org/commentary/2021/07/mariza-avgeri-non-binary-people-elan-cane/.
This article was prepared for publication by Sambhav Sharma, a JURIST Staff Editor. Please direct any questions or comments to him at email@example.com
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