This week at the Supreme Court, barristers are arguing for the right to have an X on a British passport instead of male or female. The claimant, Mx Elan-Cane, asserts a non-binary identity and argues that being compelled to state a sex on their passport is a breach of their human rights. The government claim any such breach is justified because retaining the sex binary is important.

Why should you care? Non-binary, gender fluid, they/them pronouns: it all sounds rather benign. Aren’t we all a bit non-binary? But this is not about an individual’s right to present in an androgynous manner. Men and women have always done that. It’s about creating a semi-legal route to the removal of the sex classes from law and from their place in everyday life. This is the next frontier in trans activism, as seen by Stonewall, Gendered Intelligence et al lobbying for “non-binary” to be recognised in the GRA as a third category. Meanwhile elected politicians repeat the mantra, “Non-binary identities are valid!”. The hidden message is that humans can be sex-less, that some people are neither male nor female. 

Why does it matter to you if others are “sex-less”?
First, becoming “sex-less” allows people to opt out of sex-based rules and to sidestep standard UK legal definitions. But this doesn’t affect only them. Sex-based rights and responsibilities depend on their being universal and applying to us all. This matters most to women and girls. It’s harmful to gay rights too: the definition in law of sexual orientation relies on the sex binary.

Imagine if we did not know that 98 per cent of those with sexual convictions are male

We are already seeing “non-binary” people claiming sex-based categories don’t apply to them; that their sex-less or “gender-fluid” identity means they should choose where they fit and when. Trans pressure groups are already promoting the idea that non-binary identities should have access to women-only spaces. It’s just one more way for males to access women’s spaces, opportunities and prizes. Only this time they claim to be “sex-less” instead of “female”. 

Second, it’s a danger sign for where we are ultimately headed. In time, the demand will be to drop sex altogether. If the state accepts that some people don’t have a sex, it loses its purpose as a universal identifier. Why should the government carry on recording it? Why should we continue to base laws and policy on it?

If this sounds far-fetched, the “Future of Legal Gender” study, funded by c.£600,000 of research grants, is already promoting this idea. It’s based on the fanciful idea that if we stopped recording sex, sexism would simply disappear. 

But the opposite is true. If we don’t have data disaggregated by sex, we can’t identify, measure or prove discrimination. Imagine if we did not know that 98 per cent of those with sexual convictions are male. That flashers, assailants, rapists, creators and consumers of child sexual abuse imagery are invariably male. There’d be no justification for keeping all males, even the decent ones, out of female spaces. At the same time, Stonewall is advocating for public bodies to remove the word “mother” from their maternity policies and replace it with “birthing parent” or “pregnant employee”. This is not about gender equality. It is about erasing the concept of biological sex as a relevant factor in policy and in life. 

We see the threat to women’s rights of permitting a third option, and creating a class of people who claim not to have a sex

But it’s only admin!
No one produces a birth certificate (or Gender Reassignment Certificate) to gain access to toilets and changing rooms. We all know who belongs where; human babies can distinguish between male and female long before they say their first “mama” or “dada”. So why would it matter if someone’s passport has an X on it? Because passports already offer self-ID by the back door. This next step further undermines the protected characteristic of sex in the Equality Act.

The government ultimately rejected the demand for self-identification of sex as part of GRA reform. But the sex marker on passports can already be changed with nothing more than a doctor’s note. 

As the Census case showed, passports are being used as a stealthy way to enable people to change their sex markers without oversight. In its flawed guidance, the ONS referred to passports as “official documents”, using them to justify redefining the meaning of sex in the Census. For the UK, as elsewhere, the passport is often the main form of photo-ID. Elan-Cane is bidding for an “official document” — already in effect self-ID — to enable them to opt out of the two sex categories altogether. This has already happened in Canada, New Zealand, Australia and some European countries. The US has just announced it will be doing the same.   

This is why Fair Play For Women sought permission to intervene as an expert witness in the Elan-Cane case. We see the threat to women’s rights of permitting a third option, and creating a class of people who claim not to have a sex. Five trans activist groups including Stonewall and Gendered Intelligence also applied to intervene. Ours was the only voice for women. The court declined to hear from any of us. But this is a wake-up call for defenders of the rights of women and girls. Everyone has a sexed body, no matter how they present or what their gender identity might be. No one can be allowed to opt out. Protecting our sex-based rights depends on it.