R (Castelucci) v Gender Recognition Panel and the Minister for Women and Equalities

The Divisional Court (Lady Justice Elizabeth Lain and Mrs Justice Heather Williams) gave judgment today in R (Castelucci) v Gender Recognition Panel and the Minister for Women and Equalities. The judgment is available here. A number of linked cases were brought by the Claimant, a US national whose gender in California is recognised as non-binary, who sought to obtain a Gender Recognition Certificate to record their gender as non-binary.

The Court refused all the claims, summarising the judgment at paragraph 5:

5“….we have decided that whenever the GRA refers to “gender” it refers to a binary concept; that is, to male, or to female gender. The GRP, accordingly, had and has no power to issue a GRC to the Claimant which says that they are “non-binary”. As we explain, the critical question on the Article 14 claim is justification, and we have decided that any difference in treatment is amply justified. For reasons which are similar to those which support our construction of the GRA, we have decided that it is not “possible” to read the GRA as the Claimant would wish us to. Finally, as we have decided that as there is no breach of Article 14, we have no power to make a declaration of incompatibility”

The Court held that the difference in treatment was justified on the human rights grounds, holding the balance clearly came down on the Minister’s side and that the question of non-binary recognition was pre-eminently a question for Parliament:

130….that two of the public interests relied on by the Secretary of State in that case, the need for legislative and administrative coherence, and the administrative costs of change, are also relevant in this case. They are explained in detail is the Minister’s evidence in this case. They are to be balanced against the Claimant’s interest in having the gender which has been recognised in the State of California recognised in the United Kingdom, and as against the psychological effect of non-recognition. Our view is that the balance clearly comes down on the Minister’s side. We also accept that in deciding whether or not to legislate for a different outcome, and if so, how, the United Kingdom has a wide margin of appreciation, also for the reasons given by the Supreme Court. Those include the sensitivity of the issue, and the lack of international consensus. This is pre-eminently a question which it is for Parliament to consider. We conclude, therefore, that there are very weighty reasons for the difference in treatment of which the Claimant complains, and that any difference in treatment is therefore amply justified.

Sasha Blackmore appeared in this case, led by Sir James Eadie for the Minister for Women and Equalities.