Nonbinary US citizen granted permission for judicial review of UK legal recognition policy

They will have a High Court hearing in the coming months and make their case that they should be entitled to a GRC recording their gender as nonbinary as they are legally recognised in California. The Minister for Women and Equalities is defending the claim on behalf of the Government.

The GRA 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. There is not an explicit list of which genders can be accepted. Ryan was born in California which, along with most US states, is on the approved list of territories.

Ryan has legal recognition of their nonbinary gender in the US on all of their official US documents including their California birth certificate and passport. They moved to London under a Tier 1 Global Talent visa in 2019 and sought to have their gender recognised in the UK through the GRA.

Ryan believes that having a GRC which states their gender as nonbinary is the only way they can legally clarify their gender in this country. However, the Minister for Women and Equalities argues that the GRA only permits applications for the grant of a GRC on a binary basis, namely male and female.

Ryan argues that the Gender Recognition Panel (GRP) breached its statutory duty to issue a GRC in terms which record Ryan’s acquired gender as nonbinary. Ryan is also seeking a declaration that this is a breach of their human rights.

Ryan was given permission to argue their claim in a one-day hearing at the High Court on two grounds:

1. That the GRP’s refusal to issue a GRC recording their gender as nonbinary means Ryan is treated differently from a person from California whose acquired gender is male or female, and is therefore discriminatory contrary to Article 14 ECHR; and
2. That the GRP’s refusal amounts to an infringement of their right to a private life contrary to Article 8 ECHR

Mr Justice Mostyn also allowed Ryan to seek permission in relation to their ground that the GRP breached its statutory duty to issue a nonbinary GRC at the final hearing.

Ryan Castellucci said:

"I've spent 20 years working in cybersecurity. Working in this field requires I be considered trustworthy. Not committing crimes such as providing false information on official paperwork is an important part of that. When I need to provide my gender I have three options: list my actual gender, as printed on my birth certificate, but which the UK government says I am not; list the gender none of my identity documents show, or; list the gender I never claimed to be. Which answer is legal for me to provide? Being forced to list an inaccurate gender for myself on official paperwork feels like self-betrayal, which is deeply distressing to me. All I'm asking for is a piece of paper allowing me to establish my legal gender in the UK, and to be honest without fear of committing an offense.

“The NHS defines the term “not specified” in medical records as being “indeterminate, i.e. unable to be classified as male or female”. Over 100,000 patients are registered as such. Numerous government publications acknowledge the existence of people who do not consider themselves to be female or male. I experience no issues entering the UK with my US passport listing my sex as “X”. It therefore seems that the UK already acknowledges, in multiple contexts, that people outside the gender binary exist. Other countries and territories have already taken the step of acknowledging nonbinary gender for legal purposes as well, with no apparent issues. It is time for the same to happen here."

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

“This is an important step in Ryan's case. Mr Justice Mostyn agreed that Ryan's human rights claims are arguable and should be heard at a final hearing. He was also not prepared to reject Ryan's argument that the GRP had a statutory duty to issue them with a GRC that certifies their gender as nonbinary. We look forward to making these arguments before a court at the final hearing.”

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