Non-Gendered Rights: Christie Elan-Cane’s Thirty-Year Pursuit of Equality

Listeners who tuned into BBC Radio 4’s Tuesday Lives programme on 28 September 1993 unwittingly heard the indistinct sound of history being made.

For possibly the first time ever in the UK, a non-gendered person had a national platform to explain per identity and narrate per life.

That individual was Christie Elan-Cane (per/perself), whose brief ride on the airwaves marked the beginning of a long and often lonely campaign for the rights of people who have no gender. Per efforts to secure legal recognition of non-gendered identities has taken per through many seemingly dead-end meetings with various Government departments, multiple lengthy court hearings, and a never-ending cycle of hopes raised, dashed, and raised again.

Elan-Cane’s journey to public notoriety was kickstarted when Nigella Lawson, a columnist at The Evening Standard who had listened to the programme, took exception to per choice to undergo identity-affirming surgeries. In an article titled ‘Not a Suitable Case for Treatment,’ Lawson wrote: ‘Of course, it’s Christie Elan-Cane’s body — hers [sic] to mutilate as she [sic] wishes. But behind the desire for self-mutilation surely lies the most troubling self-hatred. … I can’t help feeling that what she [sic] needed was help, not surgery.’

Lawson later apologised to Elan-Cane for her comments — an apology that per accepted — but the genie was now out, and the antagonistic pattern that would define the relationship between non-gendered individuals and the mainstream press had been set.

Having introduced perself to the world, Elan-Cane would soon make a name for perself within the expanding world of British trans activism, although per relationship with other activists, particularly those aligned with the first sustained trans campaign group, Press for Change, would often be strained.

Per vision for the rights of non-gendered people was set out in per paper delivered at the Sixth International Gender Dysphoria Conference (2000), titled ‘The Fallacy of the Myth of Gender.’ Per said:

My solution is that the bi-polarised gender system should be broadened to create a legitimate space for the non-gendered identity. The non-gendered identity will become a recognised social identity or category … alongside the existing gendered identities of male and female.

Per believed that the root cause of non-gendered people’s oppression was the fact that they were ‘systematically denied an identity’ in society and law. Overturning this lack of legitimacy would grant the non-gendered individual ‘access to all the social amenities that are presently being denied,’ including protection by anti-discrimination legislation.

The emphasis on legal ‘recognition’ as a route to liberation chimed with the preoccupations of most British trans activists.

However, while Press for Change concerned itself with legislating for a mechanism for binary-gendered trans people (i.e. trans men and trans women) to legally change gender, an objective partially fulfilled in the Gender Recognition Act (GRA, 2004), Elan-Cane’s vision entailed the creation of an entirely new legal category for those who have no gender.

Furthermore, while the GRA requires one to obtain the written approval of a relevant medical professional in order to change legal gender, Elan-Cane emphasised one’s right to self-determination. ‘I am the person most qualified to know how I self-identify,’ per said.

Given that the GRA contained nothing of benefit to Elan-Cane,¹ per experience of its passage into law could not have been further removed from the declarations of victory emanating from Press for Change. In a 2015 letter to the Labour Party’s Shadow Equalities Minister, Elan-Cane wrote retrospectively of the Act in scathing terms:

The GRA was the most discriminatory piece of legislation that I can recall and the many diverse sections within the trans* community who were excluded from its narrow remit still suffer the consequences today. … We were betrayed by the GRA and betrayed by those trans* activists who … steered this through. Shame on them! I know with certainty that history will judge them far less favourably than such time that the GRA became law and they were collecting their citizenship awards.

Three years later, Elan-Cane wrote in a blog post that ‘the GRA represented the death knell of hope because there would be no further movement on trans “rights” for years.’

The GRA thus provided the context for Elan-Cane to conclude that engagement with the trans mainstream would not lead anywhere. Per would have to forge per own path.

The lonely voice

Elan-Cane’s low-profile activism in the 1990s and early 2000s kicked into a higher gear after the GRA. In 2005, per established contact with per Member of Parliament, the Liberal Democrat Simon Hughes , who would serve as per most high-profile political ally for over half a decade.

Per then started a LiveJournal blog in 2008 to serve as a kind of campaign hub. In per first post, Elan-Cane repeated per core assertion from the Gender Dysphoria Conference: ‘It is impossible for any human being to function within a society that does not recognise their existence and fails to acknowledge their right to be.’

In another post, Elan-Cane introduced the line that would become something of a slogan, appearing at the bottom of every post to come: ‘The denial of existence is the worst act of discrimination by the gendered majority against the non-gendered.’

Per defined the first ‘ongoing campaign issue’ as the introduction of a parliamentary Bill to create a new legal category for non-gendered people, thus elevating the non-gendered individual ‘from a non-person into a human being of equal value and worth.’

The second issue, and the one that would occupy much of per time over the coming couple of years, was to convince the Office for National Statistics (ONS) to include a non-gendered option alongside ‘male’ and ‘female’ in the UK Census 2011.

Despite Elan-Cane and Simon Hughes holding seemingly productive meetings with the ONS policy team, their effort to make Census 2011 inclusive of non-gendered people ended in failure.

It was not all negative, however. Per found a new ally in Baroness Sarah Ludford (Liberal Democrats), Member of the European Parliament for London, who brought the issue of non-gendered recognition to the attention of the European Commission. Elan-Cane also kept pressuring the Identity and Passport Service (IPS) to consider gender-neutral passports.

Momentum seemed to be on per side. The census setback notwithstanding, per wrote hopefully in 2010 that ‘there is a sense of change in the air. This could be wishful thinking on my part but I can feel a sense of change and we need to move with that and seize the moment because it might not last.’ The Government’s upcoming Action Plan for Transgender Equality, in particular, seemed to offer a genuine opening.

The Action Plan, published in December 2011, committed the Government to a review of how gender identity is represented on passports, although this never yielded Elan-Cane’s desired ‘X’ marker. By July 2012, per hopefulness had once again turned to frustration: ‘I am sick and tired of waiting.’

With years of direct engagement with Government agencies having produced little besides unfulfilled promises, Elan-Cane began to complement this approach with public petitions. Per launched two of these in 2012 — one demanding that the protections of the Equality Act 2010 be extended to non-gendered people, and another demanding the legalisation of ‘X’ passports.

In 2014, Elan-Cane’s parliamentary allies, including Hughes, David Lammy (Labour), and Julian Huppert (Liberal Democrats), began tabling and signing Early Day Motions (EDMs) in Parliament in support of ‘X’ passports and non-gendered recognition.

Each successive EDM earned greater support among Members of Parliament than the last: The first garnered 40 signatures (January 2014), then 80 (June 2014), then 101 (November 2015).

Elan-Cane’s rising profile earned per a spot in the ‘ones to watch’ addendum to the 2015 edition of The Independent’s Rainbow List, an annual ranking of the most influential LGBT+ individuals in the UK. Those mentioned in the addendum were defined as ‘already doing great things, and our judges think this is just the beginning of their story.’

In Elan-Cane’s case, the judges could not have been more prescient.

Into the courts

On 15 September 2017, Christie Elan-Cane, supported by Kate Gallafent QC and Tom Mountford of Blackstone Chambers, as well as Clifford Chance LLP, announced the beginning of a judicial review proceeding concerning ‘the UK Government’s ongoing refusal to permit the issuance of non gender-specific “X” Passports to UK citizens whose identities are neither male nor female.’

This marked a new and vital stage in Elan-Cane’s campaign, although the results were, at face value, somewhat disappointing.

On 22 June 2018, Mr Justice Jeremy Baker ruled that the Government’s refusal to issue ‘X’ passports was not unlawful. Further setbacks came on 10 March 2020, when Elan-Cane’s appeal was rejected, and in December 2021, when the UK Supreme Court unanimously dismissed a further legal challenge on the same issue.

These outcomes might naturally prompt pessimism about the future for non-gendered people. However, the true significance of Elan-Cane’s court battles may not be the rulings, but rather their effect on public knowledge of non-gendered people.

Elan-Cane’s efforts in the courts have stirred up unprecedented coverage of non-gendered people and their legal status in the national news media, both on the left and the right. As per wrote in June 2018, there is a sense that ‘the tide of history is turning.’

Elan-Cane’s own notoriety in the news media has also increased significantly, granting per a much larger platform from which to speak.

It is true that much coverage of per work has been less than celebratory. In a July 2017 article for The Spectator, for example, Melanie Phillips joked that Elan-Cane’s pronouns look like a ‘typing error.’

However, other outlets have recognised the enormity of Elan-Cane’s contribution to non-gendered rights in the UK. As the High Court hearing approached in April 2018, Gay Star News published a personal profile of Elan-Cane, complete with a video interview.

Positive or negative, all of this coverage of Elan-Cane’s case brings non-gendered rights closer to the centre of political discourse, while keeping the pressure firmly on the UK Government and its refusal to countenance rights for non-gendered people.

Moreover, the Supreme Court’s decision does not necessarily spell the end. In per final blog post of 2021, deflated but not defeated, Elan-Cane announced: ‘WE ARE GOING TO STRASBOURG.’

The court battle will now head to the European Court of Human Rights (ECHR); the same court that delivered a hammer-blow against the UK’s failure to offer legal recognition for trans men and trans women in 2002.

It remains to be seen if lightning will strike twice.

An idiosyncratic hero

Nearly three decades has passed since Elan-Cane’s appearance on BBC Radio 4. As we look back on per work (so far), one major theme stands out: an intense idiosyncrasy born of necessity.

Elan-Cane tried to engage with the wider world of British trans activism in the 1990s, but quickly found that the creation of a new legal category for non-gendered people was simply too extreme for the tastes of most trans activists at the time. The Gender Recognition Act merely cemented Elan-Cane’s alienation from the activist mainstream.

From that point forward, per efforts were almost entirely separate from the work of well-established LGBT+ organisations. Per forged personal alliances with politicians, worked individually to convince Government offices to make ‘X’ passports and census inclusivity a reality, and launched a high-profile legal challenge in 2018 with little to no outside support.

Per negative view of the Gender Recognition Act also continues to inform per activism in ways that push it further from the mainstream. In 2018, per warned that the UK Government’s consultation on reform of the GRA was just ‘smoke and mirrors,’ and declared that per would have nothing to do with it — this at a time when Stonewall, the UK’s most prominent LGBT+ advocacy group, was pouring its efforts into that very consultation.

Even had they been carried forth into legislation, the proposed reforms would not have solved the fundamental legal problem faced by non-gendered people. There would still have been only be two legal categories, male and female. The non-gendered and agender would have been required to wait, once again, for their priorities to be addressed.

So, if Elan-Cane is idiosyncratic, it is difficult to see how per could be anything else. LGBT+ organisations have storied a history of ignoring the non-gendered, and of ignoring Elan-Cane’s advice in particular. With so few reliable allies, per idiosyncrasy has been per greatest virtue.

Endnotes

  1. The ‘Christie’ who participated in Sally Hines’s study of the GRA’s impact and declared that the Act ‘has made no positive impact on my life’ is likely Elan-Cane. See Sally Hines, Gender diversity, recognition and citizenship: towards a politics of difference (Basingstoke: Palgrave Macmillan, 2013), p. 62.

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Rebecca Jane Morgan

Rebecca Jane Morgan

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Historian of modern Britain, popular culture, and queer identities. PhD student, trans activist, and Quaker from South Wales. She/her pronouns.