Ryan Castellucci, R (on the application of) v Gender Recognition Panel

The Divisional Court decided the Gender Recognition Act 2004 (GRA) uses "gender" as a binary concept throughout the Act. Key provisions considered included sections 1, 2, 3 and 9 of the GRA and the statutory definition of "the acquired gender" in section 1(2) and section 25. The court held that the Gender Recognition Panel had no power under the GRA to issue a gender recognition certificate (GRC) recording an acquired gender described as "non-binary".

The claimant’s alternative argument that the statutory scheme discriminated contrary to Article 14 ECHR was rejected: the court found any difference in treatment was objectively justified by legitimate public interests including legislative and administrative coherence and practical and security implications identified in government evidence. The court also held it was not possible to read the GRA under section 3 of the Human Rights Act 1998 so as to require recognition of a non-binary GRC, and no declaration of incompatibility under section 4 was available.

Background and parties: The claimant, born male and lawfully recognised as non-binary under the law of the State of California, applied to the Gender Recognition Panel (GRP) for a GRC recording their acquired gender as non-binary. The GRP did not issue such a certificate and indicated the United Kingdom system is binary. The claimant brought an appeal under section 8 of the GRA, a judicial review application and a stayed Part 8 claim. The Minister for Women and Equalities intervened; the GRP did not take part.

Relief sought:

• An order granting a GRC recording the claimant as non-binary;
• Judicial review quashing the GRP decision and/or mandatory relief to compel issuance of such a GRC;
• Declaratory relief including a declaration of incompatibility under the Human Rights Act 1998 and damages.

Issues framed: (i) Whether, on ordinary construction, the GRA requires the GRP to recognise a foreign-acquired gender not recognised under UK law (in particular non-binary acquired gender via the overseas route); (ii) whether the GRA, if not so construed, discriminates contrary to Article 14 ECHR (read with Article 8) and, if so, whether the statute can be read compatibly under section 3 HRA or declared incompatible under section 4.

Procedural posture: Proceedings were consolidated, permission to bring the human rights grounds was granted in part by Mostyn J, the matters were heard in a Divisional Court and judgment was handed down 17 January 2024.

Evidence and factual findings: The claimant had a Californian amended birth certificate and US passport showing a non-binary/X marker and had undergone medical transition. Government witness evidence (Thompson 1) described the breadth of statutory and administrative changes that would follow recognition of a non-binary legal gender in the UK and emphasised lack of international consensus. The GRP President explained no GRC had issued because the claimant did not confirm how they wished the GRC to be printed. Expert psychological evidence by Dr Joubert was admitted in part and given limited weight; academic evidence about foreign approaches (Cannoot 1) was considered not to assist the legal issues.

Court’s reasoning: The court analysed the GRA in its statutory context and purpose (as a legislative response to Goodwin and Bellinger v Bellinger) and concluded Parliament legislated on the basis of a binary concept of gender. The wording of section 1(1), read as a whole, and other provisions (notably section 9 and section 20) indicate "gender" consistently means male or female. The court rejected a construction which would treat "gender" as having different meanings in adjacent subsections. On Article 14 the court applied the four-step test (ambit, analogous comparators, status ground, objective justification). It accepted the claimant’s distress but concluded the public interest in legal and administrative coherence, practical and security considerations, and the wide margin of appreciation justified differential treatment. The court followed and distinguished reasoning in R (Elan-Cane) v Secretary of State for the Home Department and concluded that reading the GRA compatibly under section 3 HRA was not possible and that no section 4 declaration was justified.

Outcome: Permission to apply for judicial review on the construction ground was granted as arguable, but the substantive appeal and the judicial review were dismissed. The GRP had no power to grant a non-binary GRC and there was no breach of Article 14.

The Divisional Court dismissed the appeal and the judicial review. The court held that the Gender Recognition Act 2004 uses "gender" as a binary concept (male or female) and therefore the Gender Recognition Panel had no power to issue a gender recognition certificate describing the claimant as non-binary; any difference in treatment was objectively justified on grounds of legislative and administrative coherence and public interest, the statute could not be read under section 3 of the Human Rights Act 1998 to require the relief sought, and no declaration of incompatibility under section 4 was appropriate.

Proceedings were issued 15 November 2022 (appeal under section 8 GRA, judicial review and a Part 8 claim). Mostyn J consolidated the proceedings and, by order sealed 12 May 2023, granted permission on the Article 14 and Article 8 grounds (grounds 3 and 4) and adjourned other grounds to a rolled-up hearing. The Part 8 claim stayed and not pursued. The appeal and JR were heard in the Divisional Court on 1 November 2023 and decided by this judgment dated 17 January 2024 ([2024] EWHC 54 (Admin)).