A campaigner has lost a Supreme Court case challenging the government’s refusal to issue gender neutral passports.
Christie Elan-Cane said the application process breaches human rights laws by not allowing an “X” option.
But the court said applicants’ gender was “a biographical detail which can be used to confirm their identity”.
Christie Elan-Cane said the case will now go to the European Court of Human Rights.
The campaigner, who has called for legal recognition of non-gendered identity for decades, said on Twitter that the “UK government and judicial system are on the wrong side of history” and “this is not the end”.
Gender-neutral passports are already issued by Argentina, Australia, the US, Canada, Denmark, India, Malta, Nepal, the Netherlands, New Zealand and Pakistan, while Germany has introduced an intersex category.
The Supreme Court unanimously dismissed Christie Elan-Cane’s appeal, which came after the Home Office won an earlier ruling in the Court of Appeal.
Lord Reed, president of the Supreme Court, said in the ruling that gender could be checked against birth, adoption or gender recognition certificates as part of confirming an applicant’s identity.
“It is therefore the gender recognised for legal purposes and recorded in those documents which is relevant,” he said.
He said Christie Elan-Cane’s interest in having an “X” passport was outweighed by other considerations, including “maintaining a coherent approach across government”.
“There is no legislation in the United Kingdom which recognises a non-gendered category of individuals,” he said.
He said legislation “across the statute book” assumes all people can be categorised in two sexes or genders – “terms which have been used interchangeably”.
At a hearing in July, Kate Gallafent QC, representing Christie Elan-Cane, told the court non-gendered people and non-binary people have to make a false declaration to get a passport, which “strikes at the foundation of the standards of honesty and integrity to be expected of such official processes”.
But Lord Reed said while non-gendered identity may be central to Christie Elan-Cane’s private life, the designation of an identity in a passport is not “a particularly important facet of the appellant’s existence or identity”.
Representing Her Majesty’s Passport Office – part of the Home Office – Sir James Eadie QC said it was “obviously problematic and highly undesirable” for only one part of government to recognise non-binary or non-gendered identities.
He said in written arguments it could lead to a person being treated as having one sex or gender by the passport office and a different one by other parts of government.