Advertisement

Non-binary Californian living in UK challenges High Court to make the gender legal

iStockphoto - Cunaplus_M.Faba/Non-binary flag
iStockphoto - Cunaplus_M.Faba/Non-binary flag

Non-binary could become a legal gender in the UK after a first-of-its-kind High Court challenge.

A Californian with the identity recognised in their home state launched a judicial review after their gender was listed as “not specified” in the UK.

Non-binary is an umbrella term for gender identities that are not solely male or female.

It is legally recognised as a gender in some countries but there is no option for the term on a Gender Recognition Certificate (GRC) in the UK.

Ryan Castellucci, a Californian cybersecurity expert who came to the UK in 2019, has a birth certificate from their home state of California, USA, which lists their gender as non-binary.

They were told they would have to choose between specifying as either male or female to gain a UK GRC.

Viewed as a ‘castaway’

On Friday, a High Court judge admitted that Castellucci was essentially viewed as a “statutory pariah” and a “castaway” by UK authorities.

The hearing was told that Castellucci’s birth certificate is the sole documentation which specifies their gender, while their passport features an internationally recognised X mark, meaning they specify as neither male nor female.

Mr Nicholas Mostyn, the longest-serving judge in the administrative courts, said that if Castellucci won their case, it would spark changes for “reams and reams” of legislation in a “massive” shake-up of UK policies.

He added that legislation across the board, from marriage certification to birth and GRCs, would have to be modified if a judicial review of Castellucci's case led to changes in gender recognition.

He said: “I do know the Government wants this to be dealt with efficiently and pragmatically.

“From the appellant’s point of view, the offence and bother of having to declare yourself a gender you have never been is just intolerable... it must have been. But if they succeed, the changes that will have to be made will be absolutely massive.”

However, he added he would be “surprised” if the Government, if it lost the case, would concede to making these changes and added that it would probably appeal.

“All of it would have to be changed” the judge said. “Reams and reams of legislation is written on the assumption that we live in a binary world.

“The appellant’s gender is non-binary, in a strictly legal construction. The appellant is not a person of either gender,” the judge added.

Heard at a divisional court

Sasha Blackmore, representing the Government, argued the case should be heard at a divisional court instead of being sent straight to the Court of Appeal.

Justice Mostyn concluded the hearing by ordering amendments to arguments put forward by Castellucci and their legal team and for the Government to publish their grounds of resistance to the appeal. He also agreed, “with some reluctance”, that the case should be taken forward in a divisional court.

Before Friday’s hearing Castellucci published a statement saying: “I read the Gender Recognition Act. 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.”

The case continues.