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Royal Courts Of Justice

Nonbinary US citizen granted permission to appeal ruling over gender recognition certificate

Ryan Castellucci has been granted permission to appeal the judgment of the High Court that a decision not to issue them a nonbinary Gender Recognition Certificate (GRC) was lawful.

Posted on 24 April 2024

The Court of Appeal’s decision will allow Ryan to appeal the ruling that “gender” is a binary term within the Gender Recognition Act (GRA) and refers only to male and female throughout. Ryan will also appeal the finding that while the treatment they faced is discriminatory, that discrimination is justified on grounds of administrative convenience.
Ryan, who was born in California, has legal recognition of their nonbinary gender in the US on all of their official US documents including their birth certificate and passport.
The Gender Recognition Act (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”. The list of approved countries or territories is provided by statutory instrument and included California at the time of Ryan’s application. The GRA states that the GRP must grant an application for a GRC if the place where the applicant’s gender has been legally recognised is on the approved list.
Ryan 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.
The GRP considered that Ryan had met the criteria of showing that their gender had been recognised under California law, but refused to issue Ryan with a GRC that stated that Ryan’s legal gender in the UK is nonbinary.
Ryan brought a judicial review and statutory appeal at the High Court in January 2024 to challenge the GRP’s decision. In their judgment, the Court found that contextual and linguistic factors pointed to Parliament intending that the word ‘gender’ means binary gender throughout. The Judges also found that the difference in how Ryan was treated, compared to a binary transgender person from California seeking a GRC, was discriminatory. However, the Court found that this discrimination could be justified on grounds of administrative convenience and cost, and that any changes were a matter for Parliament.
Ryan has been granted permission to appeal both these findings on the ground that their case raises novel arguments regarding statutory interpretation, and that there is therefore a compelling reason for their case to be heard. The Judge, when granting permission, commented that issues of personal identity, including gender identity, are important.
Ryan’s case will be heard by the Court of Appeal on a date to be confirmed.
Ryan is crowdfunding their legal claim.
Ryan said:
"I am grateful to the court for recognising the importance of my case by 
granting me permission to appeal.

My application for a Gender Recognition Certificate (GRC) was granted 
27th July 2022. All I want is for a GRC affirming my acquired gender to 
be issued as the Gender Recognition Act 2004 (GRA) plainly requires. 
This would cost no more than any other GRC - the government’s computers 
already support listing a person’s gender as “not specified”. As long as 
“not specified” is established to mean “neither female nor male” I would 
be happy with that option. 

I have not asked for any special treatment, and the government has 
presented no credible argument that issuing my GRC would require it. In 
particular, I make no claim that they need to provide me with photo id 
listing my acquired gender, nor that I should have access to any spaces 
or services I am not already entitled to.

The UK is my home now. My partner and I want to start a family. We want 
a more welcoming world for our children."

Leigh Day human rights solicitor Kate Egerton, who represents Ryan said:
“We believe that the language of the GRA is clear that applications for a GRC made on the basis of a person changing gender under an approved foreign legal system should be granted, and that there is nothing in the GRA that requires binary gender to be read into these provisions. We also consider that the High Court did not provide weighty reasons to justify the discrimination they rightly identified in treating nonbinary applicants differently. 
“The Judge granting permission recognised that there is a compelling reason why Ryan’s appeal should be heard, and I am pleased that we have the chance to present these important issues to the Court of Appeal.”

Kate Egerton
Discrimination Human rights

Kate Egerton

Kate Egerton is a senior associate solicitor in the human rights department.

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