Either not Neither: further consideration of non-binary identity by the High Court

5 February 2024 by Paula Kelly

The Divisional Court (Lady Justice Laing and Mrs Justice Heather Williams) confirmed in R (Castellucii) v The Gender Recognition Panel and the Minister for Women and Equalities [2024] EWHC 54 (Admin) that the Gender Recognition Panel has no power under the Gender Recognition Act 2004 to issue a Gender Recognition Certificate that records an applicant’s gender as ‘non-binary’. It also held that this did not breach any of the Claimant’s rights under Article 14 of the European Convention of Human Rights.

The Claimant is referred to as ‘them’ and ‘their’ in the judgment and the Court also refers to ‘male’ and ‘female’ as gender rather than sex for the purposes of the GRA. Both are adopted in this note.

Relevant Law 

The Bill that became the Gender Recognition Act 2004 (‘GRA’) was introduced to Parliament in the wake of two key judgments. The first was the European Court of Human Rights’ decision in Goodwin v United Kingdom (2002) 35 EHRR 18 that the UK was in breach of Articles 8 and 12 by the lack of legal recognition of gender reassignment. This was shortly followed by Bellinger v Bellinger [2003] UKHL 21; [2003] 2 AC 467, in which the House of Lords held that there was no provision in English law for (what it called) a transsexual person to marry in their acquired gender and declared section 11 (c) of the Matrimonial Causes Act 1973 to be incompatible with the Human Rights Act 1998, its first exercise of its power to do so under section 4 of the same Act.

Section 1 GRA provides two routes by which an individual can apply for a change in their gender to be legally recognised:

Applications

• A person of either gender who is aged at least 18 may make an application for a gender recognition certificate on the basis of –

• living in the other gender, or
• having changed gender under the law of a country or territory outside the United Kingdom
• In this Act, “the acquired gender”, in relation to a person whom an application under subsection (1) is or has been made, means –
• In the case of an application under paragraph (a) of that subsection, the gender in which the person is living, or
• In the case of an application under paragraph (b) of that subsection, the gender to which the person has changed under the law or territory concerned.

The GRA provided for a Gender Recognition Panel (‘GRP’) that would consider applications made by individuals who wished to change their gender and issue a Gender Recognition Certificate to that effect. The GRP must grant an application made under section 1(1)(a) if it is satisfied on the basis of evidential requirements set out in section 3 that the applicant has or has had gender dysphoria, had lived in what it calls “the acquired gender” for at least two years and intended to continue to do so for the remainder of their life.

The GRP must grant an application under section 1(1)(b) if the country or territory in which the applicant has legally changed gender is an approved country or territory.

Background

The Claimant, Ryan Castellucci, was born male in the US state of California but does not identify as either male or female. They successfully applied in California for their birth certificate to record their gender as ‘non-binary’ and to have their gender listed as ‘X’ on their American passport. California is on the list of Approved Countries and Territories.[1]

Having relocated to the UK, they applied to the GRP for a GRC that recorded their gender as “non-binary” The GRP declined to do so on the basis that the UK operates a binary system in which someone can only transition from male to female or vice versa and that GRCs were limited to certifying a gender as male, female, or “not specified“. It clarified that it did view “not specified” to mean a gender that cannot be specified as either male or female.  

Argument

The hearing before the Divisional Court was of two related claims brought by the Claimant: (i) an appeal in the Family Division against the GRP’s decision, under section 8 of the GRA, seeking an order granting the Claimant a GRC that recorded their gender as non-binary; and (ii) an application for judicial review to the Administrative Court seeking an order quashing the GRP’s decision and/or granting the Claimant a GRC that specified their gender as “non-binary” or mandating the GRP to do so, as well as declaratory relief, a declaration of incompatibility and damages under the HRA 1998. The full procedural history is detailed at [13] – [22] of the judgment, but suffice to say that the Claimant was pursuing two grounds before the Divisional Court:

• The GRC can and should be construed as permitting the recognition of a foreign-acquired gender that could not otherwise be obtained under English law; and
• Alternatively, if it does not, the GRA breaches the Claimant’s rights to non-discrimination, under Article 14 of the ECHR, as compared with an individual who changed their gender status to male or female under Californian law.

The Court considered the Claimant’s evidence of the considerable difficulty they faced in accurately recording their gender in official documents, particularly with respect to possible criminal sanctions for providing false information, and the distress that this caused them, as well as two expert reports relied upon by the Claimant, which the Court admitted de bene but ultimately placed little weight on. The evidence submitted on behalf of the Defendants comprised a short statement from the President of the GRP and a witness statement made by the Deputy Director of the Equality Hub in the Cabinet Office, which is responsible for the Government’s policy and legislation on equality, including the GRA. Her evidence was that UK legislation assumes the existence of only two sexes and/or genders and there are instances of sex or gender-specific provisions e.g. pensionable age, criminal offences that can only be committed against persons of a particular sex, such as female genital mutilation. She also catalogued the Government’s view of the impact that legal recognition of a non-binary gender would have across different government departments, pieces of legislation and public services ([52]).  

On the first ground, the Claimant submitted that an application under the domestic route (section 1(1)(a)) is founded on a binary view of gender but that the foreign acquired route (section 1(1)(b)) does not refer to “the other gender” and requires only that an applicant to have “changed gender” in an approved jurisdiction, such that a recognition by an approved jurisdiction of a gender other than male or female means that a foreign-acquired non-binary gender must be recognised and provided for in a GRC. It was open to Parliament to remove a jurisdiction from the list of approved countries and territories if it did not wish to have a gender other than male or female to be afforded legal recognition in the UK. They further contended that it was possible to construe the GRA, pursuant to section 3 HRA, such that it required the GRP to grant the Claimant’s application.

In the alternative, the Claimant contended that, if the GRA did not have that meaning, then it discriminated against the Claimant contrary to Article 14 ECHR by treating them less favourably than an applicant who had changed their gender to male or female under Californian law.

Judgment

The Court did not accept the construction of the GRA put forward by the Claimant. Whilst “gender” was undefined in the GRA, the context of the legislation was that it was to correct the breaches of the ECHR and the HRA found in Goodwin and Bellinger. The approach taken was premised on a binary concept of gender, and “Parliament did not have ‘non-binary gender’ in mind when the GRA was enacted” ([114]). This was the backdrop against which the Court must construe the meaning of the words. It considered the upshot of the Claimant’s submission to be that ‘gender’ has “two totally different meanings in the same section, subsection and sentence” ([116]):

We reject [the] submission that “having changed gender” in section 1 (1) (b) can mean anything other than “having changed gender to the other gender”. The draftsman has, with elegant economy, decided not to add the pleonastic phrase “to the other gender” to section 1 (1) (b). But section 1 (1) is one sentence. It should be read as a whole, and not artificially atomised. If it is read as a whole, it is clear that the premise of section 1 (1) is that “gender” is a binary concept.

The Court went on to consider the second ground and set out the four considerations for determining an Article 14 claim, as set out in In re McLaughlin [2018] UKSC 48, [2018] 1 WLR 4250, §15:

• Do the circumstances ‘fall within the ambit’ of another Convention right?;
• Is there is a difference in treatment between the Claimant and another person whose situation is, in relevant respects, analogous;
• If there is a difference in treatment, is it on the grounds of the Claimant’s status?;
• Is the difference in treatment objectively justified?

The Court answered questions (i) – (iii) in the affirmative: that non-binary gender is a status that falls within the ambit of Article 8 right to respect for private and family life and that there was a relevant difference in treatment between an applicant who changes gender to male or female in California and one who changes gender to non-binary.

Whilst recalling that there was no ECtHR authority that contracting states have a positive obligation to recognise a non-binary gender, the Court did not make any determination on whether non-binary gender is a suspect category. Instead, it assumed in the Claimant’s favour that “very weighty reasons” ([128]) were required to justify the difference in treatment. It weighed the Claimant’s interest in having their foreign acquired non-binary status legally recognised in the UK and the adverse psychological effect of non-recognition against the public interest in legislative and administrative coherence and the cost of implementing changes. It concluded that those reasons were sufficiently weighty to tip the balance in favour of the Minister and to justify the difference in treatment. It followed that there was no breach upon which the Court would issue a section 4 declaration of incompatibility. Having confirmed that the UK is afforded a wide margin of appreciation in deciding whether to legislate for a different outcome, the Court summarised the matter as one that is “pre-eminently a question […] for Parliament to consider” ([130]).

Comment

Following R (Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56; [2023] AC 559, in which the Supreme Court dismissed a claim that Her Majesty’s Passport Office’s policy not to issue passports with an ‘X’ gender mark unjustifiably breaches Articles 8 and 14 ECHR (which is covered by UKHRB here), Castellucci picks up the issue that the Supreme Court underlined was not in contention before it (§36), namely legal recognition of a non-binary gender.

There are three aspects of the judgment that deserve particular attention.

Firstly, whilst the Supreme Court in Elan-Cane gave its views of the GRA (§52), the Divisional Court considered those observations to be obiter and, therefore, construed the statute for itself ([122]). In any event, it reached the same conclusion as the Supreme Court that there is no legislation in English law that is predicated on a view of gender as anything other than binary. The Court was unequivocal that legal  recognition of a non-binary gender is a matter for legislators. The issue was last debated at length by MPs in May 2022 and remains a policy priority for several transgender rights campaign groups for the next General Election. However, until the ECtHR says otherwise, Parliament enjoys a wide latitude in its approach from a human rights perspective.

Secondly, GRCs were at risk of becoming increasingly superfluous in recent years, with applications for them falling below the number of individuals self-identifying as transgender and some public services accommodating gender identity as self-declared, such as in the NHS and prisons. The evidence from the Government’s Equality Hub acknowledged this shift but maintained that any recognition of an individual’s preferred gender identity by Government departments “in no circumstance amounts to legal recognition” ([40]), citing the example of the Department for Work and Pensions using the gender-neutral title “Mx” without it affecting an individual’s entitlement to sex-specific social security benefits.

Finally, the judgment is also a salutary reminder to expert witnesses of their duties under Part 35 of the Civil Procedure Rules, in particular their duty to the Court to uphold their independence. The Claimant adduced expert reports from two witnesses: an assistant professor of Law and Diversity at Ghent University, Professor Cannoot and a consultant clinical psychologist, Dr Joubert. The Court concluded that Professor Cannoot’s evidence amounted to confirmation that there is a lack of international consensus on legal recognition of a non-binary gender and adding nothing to the issues in dispute: [65]. With respect to Dr Joubert’s evidence, the Court noted that expert evidence is rare in judicial review, but was satisfied that the evidence was potentially relevant with respect to the impact on the Claimant of the difference in treatment of which they complained. However, Dr Joubert did not limit his evidence to his view of the Claimant’s mental state, and, instead, urged all “those with the authority to change all UK government systems” to provide legal recognition for a non-binary gender and stated that failure to do so amounted to “cruel and inhuman treatment” ([58]). If the Court was curt about Dr Cannoot’s evidence, its assessment of Dr Joubert’s report can only be described as scathing, remarking that he “has fundamentally failed, either to understand what [his] duty is, or, if he has understood it, to comply with it” ([61]). It made no bones about its view that Dr Joubert had “overstepp[ed]” by acting as an advocate for the Claimant and argued for changes that even went beyond the Claimant’s case ([61]). Consequently, the Court refused to admit those sections of the report and, moreover, determined that they also reduced the weight that it placed on the sections that it did consider admissible.

Paula Kelly is a pupil barrister at 1 Crown Office Row

[1] Readers inclined to explore this topic further may be interested to know that the Order expressly excludes Idaho, Ohio, Tennessee and Texas.