Nonbinary US citizen to appeal High Court's ruling over gender recognition certificate

Ryan, an American citizen who moved to London under a Tier 1 Global Talent visa in 2019, had challenged the refusal by the Gender Recognition Panel (GRP) to issue them a GRC which certified their acquired gender as nonbinary.

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 California birth certificate and US 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 includes California. 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 Californian 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 on the grounds that the Panel breached its statutory duty to issue a GRC in terms which record Ryan’s acquired gender and a declaration that this amounted to discrimination. Ryan also brought an appeal under the GRA on the ground that the Panel was wrong in law to reject Ryan's application for a GRC that identifies Ryan as nonbinary.

While ultimately the Court found that contextual and linguistic factors pointed to Parliament intending that the word ‘gender’ means binary gender throughout, the Court decided that this ground was arguable and therefore gave Ryan permission for their judicial review of the GRP’s decision and their GRA appeal. The Court rejected the Minister’s argument that the decision in Elan-Cane was a binding decision on this point.

The Court also rejected the Minister’s argument that Ryan’s nonbinary gender does not fall within the ambit of their Article 8 rights to a private and family life and found that nonbinary gender is a relevant status when considering whether someone has been subject to discrimination. The Court also agreed that the difference in how Ryan was treated, compared to a binary 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.

Judges ruled that the term "gender" in all places in the Gender Recognition Act means binary gender: male or female. Ryan intends to appeal this point along with the finding that the discrimination they face is justified.

The ruling applies to non-British applicants who are recognised as nonbinary in their home country.

Ryan said:

"It's validating that the Court has recognized that the Government's treatment of nonbinary people is discriminatory. The 'administrative convenience' justification was brought up in opposition of same-sex marriage, which we have. Recognition of nonbinary gender seems hardly more difficult, especially since a number of Government IT systems already support it. I remain committed to exercising all avenues of appeal available to me."

Ryan is represented by human rights solicitor Kate Egerton at law firm Leigh Day. She 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.”