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

The Gender Recognition Act 2004 uses “gender” as a binary concept throughout. Its overseas-recognition route does not require recognition of a foreign non-binary gender, because the Act must be read as a coherent whole and its statutory consequences assume an acquired gender of male or female.

The refusal to recognise a non-binary gender under the Act falls within the ambit of Article 8 but is not discriminatory contrary to Article 14. Legislative and administrative coherence, the cost and breadth of reform, the sensitivity of the issue and the absence of international consensus provide very weighty justification. The question is principally for Parliament. Section 3 of the Human Rights Act 1998 cannot be used to adopt a reading contrary to the fundamental binary premise of the Act.

The claimant, whose gender had been recognised as non-binary in California, sought a UK gender recognition certificate recording that gender. The Gender Recognition Panel indicated that the UK statutory scheme was binary and did not issue the requested certificate.

The claimant brought an appeal under section 8 of the Gender Recognition Act 2004 and judicial review proceedings. The Part 8 claim was stayed and was not pursued. The claimant argued that the overseas-recognition provisions required recognition of the Californian status, alternatively that the Act discriminated contrary to Article 14 of the European Convention on Human Rights and should be read compatibly under section 3 of the Human Rights Act 1998.

1. Construction. The court granted permission to apply for judicial review on the construction ground because it was arguable, but rejected it on the merits. The legislative context, including Goodwin v United Kingdom and Bellinger v Bellinger, showed that the Act was enacted to address the legal position of transgender people within a binary concept of sex and gender.
2. The word “gender” has the same meaning throughout the Act. Sections 1(1), 1(2), 2 and 9 cannot be read as using “gender” in a binary sense for domestic applications but in a different, non-binary sense for overseas applications. Section 1(1)(b) means a change to the other gender. The Act’s surrounding provisions, including its treatment of marriage, parenthood, discrimination, succession and gender-specific offences, confirm that premise.
3. Section 9(1) states the legal effect of a full certificate. The bracketed reference to the male and female genders is not merely illustrative. Subject to the statutory exceptions, a certificate changes the person’s legal status to the acquired gender, understood as the opposite binary gender. The Panel therefore had no power to issue the requested non-binary certificate. The section 8 appeal was dismissed.
4. Article 14. The claimant’s complaint fell within the ambit of Article 8. The court applied the established four-stage inquiry: ambit of another Convention right, analogous situation, status-based difference in treatment, and objective justification. It assumed, without deciding, that very weighty reasons were required.
5. The relevant comparison could not be isolated from the wider question of whether the UK should recognise non-binary gender at all. The need for legislative and administrative coherence, the substantial cost and practical consequences of change, the sensitive moral and political issues, and the absence of international consensus justified the binary scheme. The difference in treatment was therefore amply justified.
6. There was no breach of Article 14. Section 3 and section 4 remedies under the Human Rights Act 1998 were unavailable. A compatible interpretation including non-binary gender would in any event go against the grain of the Act.

The claimant issued three sets of proceedings: a section 8 appeal in the Family Division, a judicial review claim in the Administrative Court, and a Part 8 claim in the King’s Bench Division. The proceedings were directed to be heard together. The Part 8 claim was stayed and was not pursued.

High Court, Divisional Court, King's Bench Division: permission was granted on the construction ground and the Article 14 ground. Both the judicial review claim and the section 8 appeal were dismissed.