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

The Court of Appeal dismissed the appellant's challenge to the Gender Recognition Panel's refusal to issue a Gender Recognition Certificate recording a foreign-acquired non-binary gender. The court held that the Gender Recognition Act 2004 (sections 1, 2 and 9) is to be read as operating on a binary conception of gender (male or female) and that the overseas-recognition route does not import categories which domestic law does not recognise. The court further held that that interpretation is not incompatible with Article 14 read with Article 8 of the European Convention on Human Rights, because the differential treatment is objectively justified by the need for legal and administrative coherence and by the practical and policy consequences of recognising a non-binary legal category. Finally, the court held that, even if there were incompatibility, the Human Rights Act 1998 sections 3(1) and 4(2) could not be used to read the Act so as to produce the result sought by the appellant.

Background and parties: The appellant, born in California, acquired recognition as non-binary under California law and obtained US documents reflecting an X/non-binary marker. After moving to the United Kingdom they applied under the Gender Recognition Act 2004 (GRA) for a Gender Recognition Certificate (GRC) recording their acquired gender as non-binary. The Gender Recognition Panel declined to issue a GRC recording a non-binary acquired gender and, after correspondence, indicated that the UK system was binary and that a GRC could record male, female or 'not specified', with no effective non-binary recognition.

Procedural posture: The appellant issued three sets of proceedings (a statutory appeal under section 8 GRA, judicial review and a Part 8 claim). The Family Division appeal was transferred to the Divisional Court which dismissed the challenges (order dated 17 January 2024). The appellant appealed to the Court of Appeal. The Gender Recognition Panel remained neutral; the Secretary of State for Women and Equalities defended the decision.

Nature of the claim / relief sought: (i) the appellant sought a GRC recording their acquired gender as non-binary and, alternatively, declarations (including a declaration of incompatibility), quashing or mandatory relief in respect of the Panel’s decision.

Issues framed by the court: (i) statutory interpretation: whether the GRA requires the Panel to issue a GRC recording a foreign-acquired non-binary gender; (ii) compatibility with the ECHR: whether any interpretation excluding non-binary recognition is incompatible with Article 14 read with Article 8; (iii) remedy: whether section 3(1) HRA permits a compatible reading or whether a declaration under section 4(2) HRA would be appropriate.

Court’s reasoning and findings: (i) On interpretation, the court applied the modern contextual approach to statutory construction and concluded the GRA uses 'gender' in a binary sense. It relied on indicia such as section 1(1) wording (‘a person of either gender’), the definition of 'acquired gender' in section 1(2), and the operative effect of section 9(1) which transforms legal sex 'for all purposes' into the acquired gender and specifically explains that the acquired gender will make the person 'that of a man' or 'that of a woman'. The court rejected the appellant’s submission that the overseas route should be read literally to permit non-binary recognition, and rejected arguments that the Act should be treated as a 'speaking Act' so as to import non-binary recognition.

(ii) On Article 14, the court accepted the differential treatment fell within the ambit of Article 8 and engaged Article 14, but held the difference was objectively and proportionately justified. The court followed the reasoning in R (Elan-Cane) v Secretary of State for the Home Department: the absence of international consensus, the need for legal and administrative coherence across legislation and public services, and the significant practical and cost implications of recognising a non-binary category all supported a wide margin of appreciation and a proportionate state policy. The government evidence (including the practical consequences identified by departmental scoping) reinforced that conclusion.

(iii) On remedy, the court held that even if there were incompatibility the HRA section 3 obligation could not be used to read the GRA so as to require non-binary recognition because that would run against the fundamental features and statutory design of the Act; the only possible remedy then would be a declaration of incompatibility under section 4(2), but no incompatibility arose on the correct interpretation.

Subsidiary findings: the court noted the 2011 Order placed California on the approved list for overseas recognition (relevant to this application) and that a later 2024 Order removed California but saved earlier applications; the court recorded government evidence of widespread binary presumptions in domestic statutes and administrative systems.

The appeal is dismissed. The Court held that the Gender Recognition Act 2004 is to be interpreted as operating on a binary conception of gender for both the domestic and overseas-recognition routes; that this interpretation is not incompatible with Article 14 read with Article 8 of the ECHR because the differential treatment is objectively justified by the need for legal and administrative coherence and by practical and cost considerations; and that the Human Rights Act cannot be used to read the GRA so as to require non-binary recognition in domestic law.

Appeal from the Divisional Court (King's Bench Division, Divisional Court) which dismissed the appellant’s judicial review and statutory appeal (order dated 17 January 2024). The present judgment is that of the Court of Appeal, reported as [2025] EWCA Civ 167.