Castellucci, R (On the Application Of) v Gender Recognition Panel & Anor

Factual and Procedural Background

This opinion concerns an appeal against the order of the Divisional Court dated 17 January 2024, which dismissed a claim for judicial review and a statutory appeal challenging the decision of the Gender Recognition Panel ("GRP") to refuse to issue a Gender Recognition Certificate ("GRC") recording the Appellant's gender as non-binary under the Gender Recognition Act 2004 ("GRA").

The Appellant, born in California, United States, identifies as non-binary and uses the pronouns "they/them" and the title "Mx". Their birth certificate in California was amended to record their sex as "non-binary" and their American passport lists their sex as "X". After moving to the United Kingdom on a Tier 1 Global Talent visa, the Appellant sought recognition of their non-binary gender in the UK by applying for a GRC through the overseas recognition route under the GRA.

The GRP refused to issue a GRC recording the gender as non-binary, explaining that the UK system recognises only a binary gender classification of male or female, or "not specified" which does not equate to non-binary. The Appellant challenged this decision through three sets of proceedings: a statutory appeal under section 8 of the GRA, a judicial review application, and a Part 8 claim seeking a declaration that "not specified" on a GRC means the same as "non-binary". Ultimately, the appeal and judicial review were consolidated and heard by the Divisional Court, which dismissed the claims.

The Minister for Women and Equalities defended the proceedings on behalf of the GRP, which remained neutral as a judicial body. The evidence included witness statements from the Appellant and a government official outlining the legal and social context of gender recognition in the UK and internationally.

Legal Issues Presented

1. Whether the GRA requires the issue of a GRC recording an applicant’s gender as "non-binary" if that designation was acquired under the law of a foreign state or territory recognised under section 2(4) of the GRA.
2. If the answer to the first issue is negative, whether this interpretation of the GRA is incompatible with Article 14 of the European Convention on Human Rights ("ECHR") read with Article 8 (right to respect for private life).
3. If there is incompatibility with the ECHR, what is the appropriate remedy: whether the GRA can be interpreted compatibly under section 3(1) of the Human Rights Act 1998 or whether a declaration of incompatibility under section 4(2) should be granted.

Arguments of the Parties

Appellant's Arguments

• The Appellant argued that the GRA’s wording in section 1(2)(b) should be interpreted literally to include recognition of non-binary gender acquired under foreign law, as in California.
• They relied on principles of international comity and the statutory mechanism under the GRA allowing recognition of foreign countries or territories, including California at the relevant time.
• The Appellant submitted that the GRA should be interpreted as a "speaking Act" allowing evolution to include non-binary status, even if not originally envisaged by Parliament.
• They contended that the refusal to recognise non-binary status under the GRA was discriminatory under Article 14 ECHR when read with Article 8, lacking objective justification.
• The Appellant drew analogies with EU law rights, suggesting that if an EU national acquired a non-binary gender in one Member State, it would be recognised in another, implying the UK should do the same.

Respondent's Arguments

• The Respondent, represented by the Minister for Women and Equalities, argued that the GRA’s language and structure clearly envisages only a binary gender classification (male or female) domestically and in the foreign recognition route.
• They submitted that the statutory context, including section 9(1) of the GRA, confirms that a GRC changes a person’s gender for all purposes to either male or female, making recognition of non-binary status incompatible with the Act’s fundamental scheme.
• The Respondent relied on established principles of statutory interpretation emphasizing context, purpose, and parliamentary intention, rejecting a purely literal approach.
• They argued there is no breach of the ECHR because the UK is not required to recognise non-binary status domestically or via the foreign recognition route, and there is a wide margin of appreciation given the absence of international consensus.
• The Respondent emphasized the complex social, legal, and administrative implications of recognising non-binary status, which require parliamentary consideration and cannot be addressed judicially.
• They disputed the EU law analogy as inapposite because the case does not involve EU law rights or a Member State national.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by considering the proper interpretation of the GRA, particularly whether the term "gender" in the foreign recognition route should be understood to include non-binary gender. The Court rejected a purely literal interpretation urged by the Appellant, emphasizing the modern purposive approach to statutory interpretation which requires reading words in context and with regard to the statute’s purpose.

The Court found that the GRA’s language, including the use of "either gender" and the definition of "acquired gender," indicates a binary understanding of gender as male or female. Section 9(1) of the GRA, which states that a full GRC changes a person’s gender "for all purposes" to male or female, was pivotal in this conclusion. The Court held that this provision is fundamental and not merely illustrative.

The Court also rejected the Appellant’s argument that the GRA should be treated as a "speaking Act" to include non-binary status, citing authoritative precedent that courts cannot fill gaps or extend legislation beyond Parliament’s expressed authority, especially on sensitive social issues.

The Court reviewed the legislative background, including the ECtHR’s rulings in Goodwin and the House of Lords’ decision in Bellinger, noting that the GRA was enacted as a binary gender recognition scheme in response to those cases.

Regarding the Appellant’s Article 14 ECHR claim, the Court accepted the established four-step test for discrimination and proportionality. The Court agreed with the Divisional Court that there is objective justification for the difference in treatment between foreign-acquired binary gender recognition and non-binary recognition. This justification includes the coherence of the UK legal and administrative system, the lack of international consensus on non-binary gender recognition, and the significant social and legislative implications of recognising non-binary status.

The Court considered the Supreme Court’s decision in Elan-Cane, which upheld the binary gender recognition system and highlighted the complexity and cost of extending recognition to non-binary categories. The Court found these reasons applicable here.

The Court also addressed and dismissed the Appellant’s EU law analogy, noting that the case does not involve EU law rights or a Member State national, and that the cited EU cases did not concern non-binary gender recognition.

Finally, the Court considered the appropriate remedy if incompatibility were found. It concluded that the GRA could not be interpreted compatibly with the Appellant’s desired outcome under section 3(1) of the Human Rights Act 1998 without contravening a fundamental feature of the Act. Therefore, the only possible remedy would be a declaration of incompatibility under section 4(2), but this was unnecessary as no incompatibility was found.

Holding and Implications

The Court’s final decision is to DISMISS THE APPEAL.

The Court held that the Gender Recognition Act 2004 does not require the issuance of a Gender Recognition Certificate recording an applicant’s gender as non-binary, even if that status has been acquired under the law of a foreign country or territory recognised under the Act. The Court found that this interpretation is not incompatible with Article 14 of the European Convention on Human Rights when read with Article 8.

The direct effect of this decision is that the Appellant’s claim for a non-binary GRC is refused. The Court emphasized that recognising non-binary gender status in UK law is a complex social and legal issue that must be addressed by Parliament, not the courts. No new legal precedent was established beyond affirming the existing binary framework of the GRA and its compatibility with the ECHR in this context.