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

The Gender Recognition Act 2004 operates on a binary conception of gender. Its overseas route cannot require a Gender Recognition Certificate recording a foreign-acquired non-binary status where the Act’s structure, especially sections 1 and 9, confines gender and acquired gender to male or female. Context and legislative purpose govern interpretation. The court cannot use the speaking-Act doctrine or the Human Rights Act 1998 to introduce a fundamental and sensitive change which Parliament has not made. The resulting difference between foreign-acquired binary and non-binary statuses is not incompatible with Articles 8 and 14 of the European Convention on Human Rights. The UK’s binary legal and administrative system, lack of international consensus, institutional competence and implementation costs provide objective justification.

The appellant, who was recognised as non-binary under Californian law, challenged the Gender Recognition Panel’s refusal to issue a Gender Recognition Certificate recording that status. California was an approved territory under the applicable 2011 Order, subject to a later saving provision.

The Divisional Court dismissed both the judicial review claim and the statutory appeal under section 8(1) of the Gender Recognition Act 2004. The appeal concerned whether the overseas recognition route required recognition of a foreign-acquired non-binary gender, whether the contrary interpretation breached Article 14 read with Article 8 of the European Convention on Human Rights, and, if so, whether sections 3 and 4 of the Human Rights Act 1998 supplied an appropriate remedy.

1. Appeal dismissed. Lord Justice Singh gave the judgment of the court. The President of the King’s Bench Division and the President of the Family Division agreed.
2. The Gender Recognition Act 2004 had to be interpreted contextually and purposively. The modern approach was supported by R (O) v Secretary of State for the Home Department [2022] UKSC 3, R (Paccar Inc) v Competition Appeal Tribunal [2023] UKSC 28, R (Quintavalle) v Secretary of State for Health [2003] UKHL 13 and Assange v Swedish Prosecution Authority [2012] UKSC 22.
3. The words person of either gender in section 1(1) applied to both routes. The definition of acquired gender in section 1(2) likewise applied to domestic and overseas applications. Section 9(1) confirmed that the statutory consequences of a certificate were framed by reference to the male or female gender. The Act therefore did not require recognition of a foreign-acquired non-binary status.
4. The speaking-Act doctrine could not be used to make that fundamental change by implication. Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800 was not a basis for extending the Act in this context. The change involved sensitive and controversial questions affecting the wider legal and administrative system and was for Parliament. The legislative background, including Goodwin v United Kingdom (2002) 35 EHRR 18 and Bellinger v Bellinger [2003] UKHL 21, did not support the appellant’s interpretation.
5. The Article 14 analysis required consideration of ambit, analogous treatment, status and objective justification. Proportionality required consideration of the importance of the objective, rational connection, less intrusive means and fair balance. The difference in treatment was justified by the coherence of the binary system, the absence of international consensus, the institutional competence of Parliament and the cost and administrative consequences of recognising non-binary status.
6. The EU-law analogy did not assist. The authorities relied on concerned binary gender recognition or same-sex parentage, and the appellant was a United States national outside the scope of any relevant EU right. If incompatibility had existed, section 3(1) of the Human Rights Act 1998 could not have supplied the required interpretation because it would have gone against the grain and a fundamental feature of the Act, applying Ghaidan v Godin-Mendoza [2004] UKHL 30. A declaration under section 4(2) would have been the available remedy, but no incompatibility arose.

• Court of Appeal (Civil Division): appeal dismissed: [2025] EWCA Civ 167.
• Divisional Court of the King’s Bench Division: judicial review claim and statutory appeal dismissed by order dated 17 January 2024.