Legal challenge urges Government to give legal recognition to nonbinary people

Ryan Castellucci, who is nonbinary, has issued legal proceedings against the Gender Recognition Panel (GRP) and the Secretary of State for Justice arguing that the GRP breached its statutory duty to issue a Gender Recognition Certificate (GRC) in terms which record Ryan’s acquired gender as nonbinary, and has instead decided to issue a GRC of uncertain legal effect. Ryan is also seeking a declaration that a GRC which records Ryan’s gender as “not specified” would mean that their gender is for all purposes nonbinary.

A directions hearing has been listed before the High Court on 31 March 2023.

Ryan is an American citizen who moved to London under a Tier 1 Global Talent visa in 2019. They have obtained legal recognition of their gender in the US on all of their official US documents including their California birth certificate and passport. Ryan then sought to have their gender recognised in the UK through the Gender Recognition Act 2004.

The Gender Recognition Act states that a person can apply for a GRC on the basis of having changed their gender under the law of an approved country or territory outside the UK. California, along with most US states, is on the approved list of territories.

Ryan feels strongly that having a Gender Recognition Certificate which states their gender as nonbinary is the only way they can legally clarify their gender in this country. Ryan explains this further in their full witness statement for the hearing.

Since Ryan’s claim was issued, the Minister for Women and Equalities, Kemi Badenoch MP, made a written ministerial statement on 9th January 2023 setting out the Government’s plans to update the list of approved countries and territories under the Gender Recognition Act. It is expected that this would end reciprocal recognition for trans people from most territories in the US, and countries such as Canada and New Zealand. The effect of this on Ryan’s application, should the government go ahead with these plans, is unclear given Ryan’s only legally recognised gender is nonbinary.

Ryan’s reasons for bringing the claim

Ryan is bringing the claim to obtain legal validation of their gender in the UK, where they are living long-term and intend to make their permanent home.

Ryan says that the current UK approach to how their nonbinary identity is treated means that they are unable to regularise their administrative and legal affairs and ensure that they comply with the law, which is highly distressing.

For example, the UK Government website on biometric residence permits (BRP) states that “you must apply for a new BRP straight way” if one of a number of personal circumstances change, including gender. Ryan accordingly filled out the appropriate paperwork and marked ‘unspecified’ under gender as the only alternative to male or female. However, after lengthy correspondence with UK Visas and Immigration, Ryan received their BRP with female listed under gender, which is incorrect.

Ryan had similar difficulties applying for a provisional driving licence. While they were able to have ‘Mx” as their title the licence is still technically under female gender.

Difficulties also arose when Ryan had to undergo a background check for their job, which included a warning that providing false information was a criminal offence. Ryan contacted the relevant authority conducting the background to find out what they should put under gender as male/female were the only options. The person they spoke to did not know and ultimately Ryan wrote in nonbinary on the form; however, this was changed to female by the background check company without asking Ryan. While the check was successfully completed in the end, this caused Ryan significant anxiety that their professional life could be negatively affected by a legal and administrative failure to allow them to be recognised as nonbinary in the UK.

History of Ryan’s GRC application

Ryan’s GRC application was sent to the GRP in April 2022. The GRP initially stated that under the Gender Recognition Act “a person can only transition from either a Male to become a Female, or from Female to Male”, despite no such limitation in the text of the statute. The response then went on to ask Ryan to confirm that they would be “happy for the gender ‘Female’ to be printed on [their] gender recognition certificate”, since the original birth certificate listed ‘Male’. Ryan responded that they are not female, do not want to be certified as ‘Female’, and that since their acquired gender is nonbinary, this is what the Gender Recognition Act requires to be listed on their GRC.

Ryan received a further response from the Panel in September which stated that the GRP’s President had reviewed their query and that “the UK system is a binary system” and that “because of the way the computer programme is set up” the only options are ‘male’, ‘female’ or ‘not specified’. Ryan replied requesting further clarification of having ‘not specified’ printed on a GRC and whether this would mean a gender which cannot be classified as female or male.

A month later Ryan received a further reply from the President of the GRP confirming that she had granted their application on the basis that Ryan has been legally recognised as nonbinary in an approved territory, despite the fact that nonbinary is not a recognised gender in the UK. She confirmed that she could list ‘not specified’ on Ryan’s GRC but added that she was not able to confirm the legal effect of the ‘not specified’ category. She requested that Ryan make a decision on their GRC without any further correspondence or questions to the GRP team.

The legal proceedings

In principle, Ryan would be happy for their gender to be recorded as ‘not specified’ if the legal definition of that was that they are a gender that is not classified as male or female. However, Ryan does not feel they can accept a GRC with uncertain legal meaning.

A letter before action was sent to the President of the GRP and the Secretary of State by law firm Leigh Day, on Ryan’s behalf, on 7 November 2022 which requested that Ryan be issued a GRC which records their gender as nonbinary, or has an equivalent effect. A response to the letter was not received and Ryan’s legal team issued proceedings in accordance with the time limits for an appeal to the GRP’s decision. The issued legal proceedings include:

• an application for judicial review on the grounds that the Panel breached its statutory duty to issue a GRC in terms which record Ryan’s acquired gender, and has instead decided to issue a GRC of uncertain legal effect;
• an application for a declaration that a GRC which records Ryan’s gender as “not specified” means that their gender is for all purposes nonbinary; and
• an appeal under the Gender Recognition Act on the ground that the Panel was wrong in law to reject Ryan's application for a GRC that identifies Ryan as nonbinary.

Although having a GRC with nonbinary gender confirmed would not automatically mean that the Government has to recognise nonbinary for other documents, such as passports, Ryan feels it would be a positive and significant step forward in ensuring nonbinary people are properly, and legally, recognised in the UK.

Ryan Castellucci said:

“NHS England has over 100,000 people registered as "indeterminate" rather than female or male. The UK Government has defined nonbinary people as those who "identify in some way outside of the man-woman gender binary". Even so, they insist that allowing a person's legal gender to be anything other than female or male would be too "complex".

“My birth certificate and passport list my gender as "nonbinary" and "X" respectively. What then, as a matter of law, is my gender here in the UK? I don't know, and the Government doesn't seem to either. Every time it comes up they tell me that with my documents I may freely choose between female and male. They imply that there's no wrong answer, but neither is right either. Sometimes I must fill out forms warning that giving dishonest answers is a criminal offense. By maintaining the status quo the Government has merely created a different complex situation rather than avoiding one.

“There are hundreds of thousands of transgender people living in the UK. They cannot change records of their birth, marriage, death, and taxes without a GRC. The process of getting one is so arduous that in the 2021/22 financial year only 800 applications were received. Going back to when the Gender Recognition Act (GRA) became law nearly 20 years ago, the total is still well under 10,000. Internationally, many other governments have begun allowing records to be changed with a sworn declaration. There's no evidence of these streamlined processes being abused, yet the UK is fighting this trend. I find this deeply disappointing.

“I read the GRA. I couldn't find anything directly stating that male and female were the only options. It does, however, seem to explicitly say that I am entitled to a GRC matching my birth certificate. So I applied. My application was granted, yet my GRC has not been issued. They told me to choose an inaccurate gender or be left with a legally ambiguous gender. I cannot accept that.”

Kate Egerton, solicitor at law firm Leigh Day, added:

“Our client is simply asking for legal recognition of their acquired gender, as the Gender Recognition Act explicitly requires the GRP to provide. It is both unfair and illogical for someone who is legally recognised in one country as nonbinary to be forced to choose to be recognised as either male or female in the UK, or to be given a third ‘not specified’ option which has no legal meaning.”

Counsel instructed are Chris Buttler at Matrix Law and Marlena Valles at Blackstone Chambers.

Ryan has set up a crowdfunding campaign to offset the substantial costs of bringing this claim.