Refusal of a non-binary gender recognition certificate does not breach the applicant’s Art 14 rights, the High Court has held
R (on the application of Castellucci) v Gender Recognition Panel and other cases [2024] EWHC 54 (Admin) concerned the meaning and effect of the Gender Recognition Act 2004 (GRA), governing the issue of gender recognition certificates by the Gender Recognition Panel.
Ryan Castellucci, who is non-binary, has been recognised as such on their passport and birth certificate, under the law of the State of California. The GRA enables a person to apply for a certificate on various bases, including ‘having changed their gender under the law of an approved country or territory outside the UK’.
Castellucci applied for a gender recognition certificate stating their gender as non-binary. This was denied by the panel on the basis the UK does not operate a system that recognises a non-binary category.
Castellucci challenged this on two grounds. First, the panel had misinterpreted the GRA and was obliged to issue the certificate because Castellucci’s change of gender from male to non-binary has been recognised by the State of California. Second, the GRA discriminated against them contrary to Art 14 of the European Convention on Human Rights.
The court held the GRA’s reference to ‘gender’ referred to a binary concept, therefore the panel had no power to issue a certificate that says the claimant is non-binary. It found that non-binary gender is a relevant status when considering whether someone has been discriminated against under Art 14, and agreed Castellucci had been discriminated against. However, it found this discrimination justified on grounds of administrative convenience and cost, and held that any changes were a matter for Parliament.
Kate Egerton, solicitor at Leigh Day, representing Castellucci, said: ‘While we are disappointed with this result, the court recognised the arguability of Ryan’s case, and agreed with us on some key issues. We consider that the points upon which they disagreed with us can be appealed.’
