Castellucci v Gender Recognition Panel

Hearing date: 1 November 2023

Approved Judgment

This judgment was handed down remotely at 10.30am on 17 January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Lady Justice Elisabeth Laing AND Mrs Justice Heather Williams

Lady Justice Elisabeth LaingAND

Introduction

This case is about the meaning and effect of the Gender Recognition Act 2004 (“the GRA”). The GRA governs the issue of gender recognition certificates (“GRCs”) by Gender Recognition Panels (“GRP”). The Claimant was born male. We will refer to the Claimant as “they”. Their “gender” has been recognised under the law of the State of California as “non-binary”. They would also like to have a GRC which says that their gender is “non-binary”. They applied to the GRP for such a GRC. It is not the practice of the GRP to issue such a GRC, and it did not issue one to the Claimant. This is our judgment in the legal proceedings brought by the Claimant to challenge the GRP's position. At the hearing, the Claimant relied on two arguments.

They said, first, that the GRP has misinterpreted the GRA. The effect of the GRA, when properly understood, is that the GRP is obliged to issue them with a GRC which describes their gender as non-binary because their change of gender from male to non-binary has been recognised by the State of California.

They also argued that, if this construction of the GRA is wrong, the GRA discriminates against them contrary to Article 14 of the European Convention on Human Rights (“the ECHR”) on the grounds of their status as a non-binary person. They further argued, if that is right, that it is ‘possible’ to read the GRA, and it therefore must be read, in accordance with section 3 of the Human Rights Act 1998 (“the HRA”), so as to oblige the GRP to issue the GRC which they would prefer. If it is not possible to read the GRA in that way, they asked us to exercise the power to make a declaration, under section 4(2) of the HRA, that the GRC is incompatible with their Article 14 rights.

The Claimant was represented by Mr Buttler KC and by Ms Valles. Sir James Eadie KC and Ms Blackmore represented the Minister for Women and Equalities (“the Minister”), who intervened in the proceedings. The GRP has taken no part in them. We thank counsel for their written and oral submissions, which were excellent.

For the reasons given in this judgment, we have decided that whenever the GRA refers to “gender” it refers to a binary concept; that is, to male, or to female gender. The GRP, accordingly, had and has no power to issue a GRC to the Claimant which says that they are “non-binary”. As we explain, the critical question on the Article 14 claim is justification, and we have decided that any difference in treatment is amply justified. For reasons which are similar to those which support our construction of the GRA, we have decided that it is not “possible” to read the GRA as the Claimant would wish us to. Finally, as we have decided that as there is no breach of Article 14, we have no power to make a declaration of incompatibility.

The facts

The Claimant was born in the State of California in the United States of America. In December 2019 they moved to the United Kingdom on a Tier 1 “Global Talent” visa to work as a cyber security expert.

The Claimant's sex was listed as “male” on their original Certificate of Live Birth issued by the State of California. However, the Claimant does not identify as either male or female. They have been diagnosed with gender dysphoria and have had different medical treatments, including hormone treatment and genital surgery. On 23 June 2021 the Claimant was recognised as non-binary by the State of California and, in accordance with the law of the State of California, their Certificate of Live Birth was amended to change their sex to “nonbinary”. There is no indication on the document that it is not the original certificate or that the Claimant's sex was previously registered as male. On 12 April 2022 the Claimant was issued with an American passport which lists their sex as “X”. The Claimant uses “Mx” as their preferred title.

The State of California is on the list of Approved Countries and Territories (see paragraph 76, below). After obtaining legal recognition of their non-binary status in the State of California, the Claimant sought to have their gender recognised as non-binary in the United Kingdom through a GRC. They completed a statutory declaration, witnessed by a notary public, on 21 February 2022, stating that they had transitioned in November 2019; they had lived as non-binary throughout the period of two years before the date of the statutory declaration; they intended to live in that gender until their death; they were ordinarily resident in England and Wales; and they were not currently married or in a civil partnership. In April 2023 the Claimant submitted the declaration with an application for a GRC to the GRP, using the appropriate prescribed form, T453.

On 23 August 2022 the Claimant received a response from the GRP indicating that under the GRA: “a person can only transition from either a Male to become a Female or from Female to Male. The gender Mx is not yet legally recognised in the “UK” and that accordingly, the certificate would be printed with “the new gender being the opposite gender to the one you were born into, which is female”. The Claimant was asked whether they were happy for their gender to be recorded as “Female” on the GRC. The Claimant replied on 9 September 2022 saying that their gender was “Nonbinary”, as recognised by their birth certificate issued in the State of California, and that this should be printed on the GRC. The Claimant explained that they would not be happy to be certified as “Female”, as this was not their gender.

On 9 September 2022 an Administrative Officer wrote to the Claimant saying that the GRP President, Judge Gray, had reviewed the query and “asked us to explain that the UK system is a binary system”, that GRCs “are only able to certify either male, female or ‘not specified’” and that no other alternative was possible. The Claimant then asked for confirmation that a designation of “not specified” on a GRC would have the meaning of “a gender which cannot be classified as ‘female’ or ‘male’”.

The President of the GRP replied by letter dated 25 October 2022 saying:

“The situation is that I granted a Gender Recognition Certificate on the basis of your application having changed gender in California, where you were recognised as nonbinary. California is on the list of those countries/states which are recognised by the UK in the context of applications from abroad. In my legal judgment, that meant that I was able to grant your application, despite the fact that the UK does not itself operate a system which recognises a non-binary category.

You have had the position regarding the UK categorisation explained to you. You ask, however, whether “not specified” when printed on a GRC has a meaning to the effect of “a gender which cannot be classified as ‘female’ or ‘male’”. The answer to that is probably no, but I preface that remark with the observation that I am not able to give you legal advice. My answer is given because as the UK does not recognise a nonbinary category I can think of no reason why there would be such a meaning.

I would ask that you make a decision as to your position regarding the certificate without further queries of the GRP Team as neither they nor I are in a position to take the matter further.”

The Claimant then began proceedings, as we describe below.

Procedural history

Following pre-action correspondence, on 15 November 2022 the Claimant issued three sets of proceedings: (1) an appeal in the Family Division, under section 8 of the GRA, against the GRP's decision, in the 25 October 2022 letter, refusing to grant a GRC specifying their acquired gender as non-binary (“the Appeal”); (2) an application in the Administrative Court for judicial review of the 25 October 2022 decision (“the JR”); and (3) a Part 8 Claim in the King's Bench Division seeking a declaration that “not specified” on a GRC issued to the Claimant under the Overseas Recognition Route meant the same as “nonbinary” (“the Part 8 Claim”). The remedy sought in the Appeal was an order granting the Claimant a GRC recording their gender as non-binary. In the JR the Claimant sought an order quashing the GRP's decision and/or an order granting them a GRC specifying their gender as non-binary and/or a mandatory order requiring the GRP to provide a GRC to that effect. Declaratory relief was also sought, including a declaration of incompatibility under the HRA, and damages under the HRA.

A letter to the court dated 24 March 2023 indicated that the GRP, as a judicial body, was neutral, and did not intend to take part...