American loses UK appeal to become legally non-binary

An American individual seeking formal recognition as non-binary in the UK has been informed by the Court of Appeal that their gender identity is not legally acknowledged in this country. Ryan Castellucci had previously lost a High Court case to have their gender registered as non-binary on a gender recognition certificate—a document that changes a person’s legal sex—after relocating to the UK in 2019.

Having gained legal recognition as non-binary in California in 2021, Castellucci was issued a U.S.A. passport in 2022 that lists their sex as ‘X’. In dismissing the appeal, Lord Justice Singh stated the matter was “potentially controversial” and “better suited to resolution in Parliament than the courts.”

During an earlier hearing, the court learned that Castellucci, a cybersecurity expert who moved from California to the UK, uses the title “Mx” and identifies with they/them pronouns. Although they have undergone surgery and hormone treatment, they told the court they keep the name Ryan due to its unisex recognition in the U.S.A.

Castellucci described the process of obtaining legal documents listing them as non-binary as an “ordeal” and expressed concerns about potential challenges related to their gender identity when applying for British citizenship. They also highlighted worries regarding how their gender identity would be marked on their death certificate, given that their U.S.A. documents identify them as non-binary.

Lord Justice Singh, along with Dame Victoria Sharp and Sir Andrew McFarlane, noted that only 11 countries worldwide, and some U.S.A. states like California, legally recognise non-binary gender. Non-binary is a term for individuals who do not identify exclusively as male or female.

According to ‘BBC’, in a judgment released on Tuesday, Lord Justice Singh explained: “The concept of 'gender' in the Gender Recognition Act (GRA), when referred to in the context of the domestic law route, is confined to two genders.” He further added that during a previous appeal in 2023, the government indicated that “no changes were currently needed and that more research and consultation would be required before contemplating any changes.”

He continued, “There is no general consensus, either within the Council of Europe or more widely around the world, in favor of recognizing non-binary status. Furthermore, this is an area of social policy that is highly sensitive and potentially controversial, thus being better suited to resolution in Parliament rather than in the courts. This is not only for reasons of democratic legitimacy but also due to reasons of institutional competence.”

Anna Dews, an associate solicitor at Leigh Day, the firm that represented Castellucci, stated they were considering appealing the decision. She remarked, “Ryan's only registered gender is non-binary. Despite Parliament legislating for the UK to recognize foreign-acquired genders, the courts have thus far ruled that non-binary foreign genders do not count. Ryan believes that true gender equality cannot exist without acknowledging that not all genders are binary.”