The Divisional Court has today given judgment on whether the Gender Recognition Act 2004 (“GRA”) permits the recognition of foreign-acquired non-binary genders.
Under s.1 GRA, there are two routes through which a person may apply for a gender recognition certificate (“GRC”). The domestic route requires an applicant to have lived in “the other gender” (s.1(1)(a) GRA), and the Gender Recognition Panel must be satisfied that the applicant has or has had gender dysphoria, has lived in the acquired gender for the past two years, intends to live in the acquired gender until death, and must provide evidence by medical practitioners (s.2(1) GRA). The foreign route only requires the applicant to demonstrate that they have “changed gender under the law of a country or territory outside the United Kingdom” (s.1(1)(b) GRA) and that the country or territory in which they changed gender is on the list of Approved Countries or Territories (s.2(2) GRA), a list prescribed by order made by the Secretary of State and approved by Parliament (s.2(4) GRA). The word “gender” is not defined within the GRA.
The Claimant is a US national. Their legal gender in California, as recognised by their Californian birth certificate, is non-binary. Their US passport lists their gender as ‘X’. The Claimant moved to the UK on a Tier 1 “Global Talent” visa. California is on the list of Approved Countries or Territories and so the Claimant applied through the foreign route to have their Californian non-binary gender recognised with a GRC. The Panel considered that the Claimant had met the criteria of showing that they had changed gender under Californian law, but refused to issue the Claimant with a GRC that specified their gender as non-binary.
The Divisional Court dealt with two linked claims by the Claimant: (i) an application in the Administrative Court for judicial review of the Panel’s decision not to issue a GRC in terms which record the Claimant’s foreign-acquired gender; and (ii) an appeal of the Panel’s decision in the Family Division, under s.8 GRA.
The Claimant relied on two arguments in support of their claims. Both were rejected by the Divisional Court.
First, the Claimant contended that while the domestic route is predicated on a gender binary (because the UK does not domestically recognise non-binary gender, and s.1(1)(a) refers to living in “the other gender”), under the foreign route the applicant must only have “changed gender” in a relevant jurisdiction, and if a jurisdiction on the Secretary of State’s list of approved countries or territories recognises genders other than male or female, then that foreign-acquired gender must be recognised pursuant to s.1(1)(b) GRA. The Claimant argued that Parliament and the Secretary of State maintained control of the list of approved countries and territories, so it is able to remove a jurisdiction if it no longer considered that the genders it recognised should be recognised in the UK.
The Court held that although the term “gender” was undefined in the GRA, Parliament understood gender to be a binary concept. Likewise, it considered that it was unlikely that when enacting the GRA, Parliament had contemplated the possibility that other jurisdictions would begin to recognise genders not recognised in the UK, and so would not have expected the word “gender” to have a different meaning in the foreign route than it had in the domestic route (§§114-118). The Court decided this question of construction for itself, finding that the Supreme Court’s observation in R (Elan-Cane) v Secretary of State for the Home Department  UKSC 56 at §52 that the GRA “likewise assumes that all individuals belong to one of two genders” was obiter (§122).
Second, the Claimant argued that if their construction of the GRA is wrong, the GRA discriminates against them contrary to Article 14 ECHR on the grounds of their status as a non-binary person because it treats persons who have changed their gender to a binary gender in California (e.g., male to female, or female to male) more advantageously than it treats people who have changed their gender to non-binary.
The Court found that non-binary gender is a status, that the treatment complained of fell within the ambit of Article 8, and that there was a relevant difference in treatment (§§125-126). Turning to justification, the Court assumed in the Claimant’s favour, though without deciding the point, that the standard for justification was “very weighty reasons” (§128). Even on that basis, the Court held that the public interests relied upon by the Minister (the need for legal and administrative coherence, also relied upon by the Secretary of State in Elan-Cane) outweighed the Claimant’s interests in equal treatment, particularly given the UK’s wide margin of appreciation (§130).
Chris Buttler KC and Marlena Valles acted for the Claimant, instructed by Kate Egerton at Leigh Day.
Sir James Eadie and Sasha Blackmore acted for the Minister for Women and Equalities.