Court of Appeal Rules Against Foreign-Acquired Non-Binary Gender Recognition

The Gender Recognition Act 2024 makes provision for individuals in the UK to change gender from male to female or female to male. It also provides for the UK to recognise a gender acquired under the law of a country or territory provided that the country or territory in which they changed gender is on the list of Approved Countries or Territories.

The recent decision in R (on the application of Castellucci) v Gender Recognition Panel by the UK Court of Appeal is a significant moment in the ongoing discussion around the rights of transgender individuals and the legal framework surrounding gender recognition.

The Claimant, a US citizen, had been diagnosed with gender dysphoria and had had various medical treatments, including hormone treatment and genital surgery. In December 2019, they moved to the UK on a Tier 1 “Global Talent” visa. On 23 June 2021, they were recognised as non-binary by the State of California and, in accordance with Californian law, their birth certificate was amended to change their sex to non-binary. On 12 April 2022, the Claimant was issued with a US passport which lists their sex as “X”. The Claimant uses “Mx” as their preferred title.

In the UK, the Claimant applied for a GRC recording their non-binary status under section 1(1)(b) of the GRA 2004 (the “foreign application route”). The Gender Recognition Panel (GRP) was satisfied that the Claimant had legally changed gender in California and that this was recognised as an approved territory for the purposes of the foreign application route. However, it refused to issue a GRC in terms which specified the Claimant’s acquired gender as non-binary because, under the GRA 2004, it is only possible to transition from male to female or female to male, and non-binary gender is not legally recognised in the UK.

The Claimant challenged this decision by way of an appeal under section 8 of the GRA 2004 and an application for judicial review, arguing that:

• The GRP was obliged to issue a GRC describing them as non-binary because their change of gender had already been legally recognised by the State of California. They argued that the term “gender” in the GRA 2004 should include a gender which might not be recognised by the law of England and Wales.
• They had been discriminated against contrary to Article 14 (protection from discrimination) of the European Convention on Human Rights (ECHR) on grounds of their status as a non-binary person.

Decision of the High Court

The High Court ruled that Claimant had received different treatment on the basis of their non-binary status. However, there were weighty reasons which proportionately justified this difference in treatment. It did not therefore amount to a breach of Article 14 of the ECHR. The Claimant appealed.

Decision of The Court of Appeal

The Court of Appeal has held that the Gender Recognition Act 2004 does not require the issue of a gender recognition certificate recording an applicant’s gender as ‘non-binary’ where that designation has been acquired by the applicant under the law of a state or territory outside the United Kingdom. Furthermore, that interpretation of the Act was not incompatible with Article 14 of the European Convention on Human Rights. There were very weighty reasons that proportionately justified the difference in treatment between those with a foreign-acquired non-binary gender and those with a foreign-acquired binary (i.e. male or female) gender, such as the coherence of the legal and administrative system in the UK and the cost implications of having to change the current system. In any event, the consequence of the applicant’s complaint would be to require the UK to recognise a non-binary status in domestic law (albeit only in cases coming through the foreign application route) in circumstances in which it was not otherwise required to do so by the ECHR.

This case is a very useful guide to the Gender Recognition Act 2004, and where the law does not necessarily reflect what are fast becoming societal norms. If you require any assistance in relation to Gender Recognition and how this may effect your employees, please do not hesitate to contact one of our legal experts.