Thread by @tribunaltweets

Good morning. Today we shall be tweeting the application for Judicial Review brought by a US citizen Ryan Castellucci against the Gender Recognition Panel. We expect the hearing to begin at 10.30 am.

Our substack page on the case is here: tribunaltweets.substack.com/p/judicial-rev…

Abbreviations:
RC = Ryan Castellucci, bringing the application
GRP = Gender Recognition Panel

J = either of the two Judges (Lady Justice Elisabeth Laing and Mrs Justice Heather Williams)

We do not yet know the names of the barristers acting for either side.

Other abbreviations likely to come up:

GRC = Gender Recognition Certificate
GRA = Gender Recognition Act
BC = birth certificate

CA = California (where Ryan Castellucci is from)

ECHR = European Convention on Human Rights

The Court is making preparations, but the hearing has not yet started.

[We being. Case is introduced. J instructs those attending remotely to mute etc. Permission to live-tweet is given]

J: Some info re claimant must not be revealed - age, address, phone number.
J: Claimant has applied to put in additional evidence; any objections? [cannot hear comments from Sir James Eadle KC counsel for the Secretary of State, = JE. Counsel for RC = CB Chris Buttler KC]

J: [Some further procedural issues, including that judgment will be reserved and not given today]

CB: Am appearing for claimant RC. [checks everyone has bundles]. This is appeal under S8 of GRA, that GRP misconstrued the Act.

CB: GRA provisions are, we do accept, just re male <-> female changes and that that applies to all UK applicants. But, under provisions for recognising changes already taken place in approved overseas country / territory, we say the GRA does *not* have that limitation.

CB: So we say that a change of gender under foreign law won't be under the same rules as UK eg maybe not 2 years period of "living in" new gender, and similarly if a nonbinary gender is recognised overseas. Govt should remove from recognised list if not so.

CB: If someone has a nonbinary recognised gender, cannot be discriminated against vs someone with a binary recognition.

CB: So - proper interpretation of GRA. 1st = domestic binary route 2nd = overseas route 3rd = mutual recognition in other acts 4th = does it matter if parliament foresaw nonbinaries 5th = [missed] 6th = how does all this apply to claimant case

CB: We accept that GRA must be seen in context of its enactment, and that it was in response to cases of Goodwin and Bellinger - post-op transsexual not having ID docs breaching Art8 and not being able to marry in new gender = breach Art12.

CB: Was about lack of recognition for post-op individuals. No mention of nonbinary genders either way.

CB In Bellinger House of Lords said parliament must devise solution eg re medical intervention required and what would knock-on effects of change of gender be eg re marriage, prision, sport etc.

CB: No mention re Goodwin of recognition of foreign state change - parliament took that on itself.

CB: Must see GRA in context of other laws in which it sits. Law on registering sex at birth was binary, still is. UK laws that refer to gender were and are predicated on binary. Male or female.

CB: So parliament only provided for people *in the uk* to change male-> female or vice versa.

CB: So that's the background. If we look at section 1 of GRA. Person of either gender over 18 can apply. "Either gender" - refers to person's gender before change. Birth gender. Contrasts with 'acquired gender' referred to later. Domestic route - acquired=the one in which living

CB: In the UK the only other gender is either male or female.

CB: Panel role - 4 requirements. 1) gender dysphoria 2) 2 years living in new gender 3) will do for rest of life 4) evidence provided as required.

CB: Evidence inc medical reports, statutory declaration, declaration whether married.

CB: Coming back to [section of GRA] - to make sense of it, must look also here - the "fast track" method. If you have been living-as for 6+ years the evidential requirements are slightly different

CB: So applying the fast-track lens to this earlier section of the GRA. That is how the GRA operates.

CB: Section 4 = successful applications - panel must issue full certificate if not married (or if partner wants), interim otherwise, and then specs re marriage/civil partnership continuing / ending.

CB: Section 7 - re details of applying, fee. Section 8 = appeals. Section 9 = consequences of a GRC. "Acquired gender for all purposes" - domestic route = the other of two.

CB: Goes on to say that "for all purposes" is qualified eg by other enactments / legislation. Will come back to this when I look at foreign route.

CB: GRA goes on to specify process of GRC registration, BC change. S11 - some minor consequential provisions eg if a spouse did not know.

CB: Section 12 - GRC does not change whether father or mother of a child. S13 - social security, pensions are in "acquired gender". S14 introduces protected characistic 'gender reassignment' - superseded by Equality Act 2010

CB: Other provisions re peerages, inheritances, still treated as 'birth gender' not 'acquired gender'

CB: GRA says certain criminal offences are committed as by 'biological gender' not 'acquired gender'

CB: And provision for secretary of state to enact in relation to acquired gender status.

CB: So re the foreign route. Parliament had 3 options for this. 1 = ignore any foreign status and have same process for everyone. 2 = simply recognise any foreign change. 3 = *some* recognitions, which is what Parliament chose.

CB: In a foreign recog nition the change has already occurred - the Q is, what effect should it have. Did Parliament intend to limit the recognition of foreign changes to binary changes?

CB: Having a change of gender under foreign law does not mean UK will automatically recognise it. There are rules about who can apply for recognition of a foreign change. Going back - someone of either gender over 18 who has obtained recognition abroad.

CB: We say "person of either gender" *can't* mean a person of either *acquired* gender, bcs that would mean it was already recognised by UK. Can *only* refer to the gender *before* recognition.

CB: in practice this means 'birth gender'. We accept that 'either gender' must mean either male or female. Not a problem, claimant birth gender is male.

CB: Back to GRA - panel must grant GRC if applicant is from approved country, and satisfies the evidence requirements. Approved country = one listed at the time. State of CA = an approved territory.

CB: GRpanel is *not* required to apply the *domestic* route requirements to an overseas applicant. Gender dysphoria, live-till-death - those are domestic requirements, don't apply to overseas route.

CB: GRA says panel must issue certificate; and that applicant with cert's gender becomes the 'acquired gender'.

CB: 'Acquired gender' meaning the gender the applicant has become under the law of the country or territory concerned. So we say, the 'acquired gender' is defined by reference to the *foreign* law - CA in this case.

CB: The 'acquired gender' term, indeed 'gender' is not defined in the GRA. "Either" at the start of the act can't narrow the common law definition of 'gender' - the "either" refers to birth. Cannot limit the operation of 'gender' in foreign law.

CB: Act *could* have limited 'acquired gender' to binary - but did not.

CB: If we look at the explanatory notes for section 9. Only gives M-F example - so it's clear that it's only *one* example of the possible changes.

CB: So we say that it *is* possible for the UK to recognise a foreign-acquired gender that is not possible in UK law. For example someone might have obtained foreign change under 18. Might not have gender dysphoria, might not have statutory declaration re until-death.

CB: We also say that an 'acquired gender' might not be one existing in UK, what matters is that it's recognised by foreign law.

CB: My 3rd topic - analagous foreign recognition provisions in other acts. There is nothing strange about parliament giving recognition to foreign statuses not in UK law.

CB: For example polygamous marriages. Matrimonial Causes Act - marriage is void *if* polygamous and one party resides in england / Wales.

CB: But a foreign polygamous marriage can be recognised as valid otherwise - if not resident. This is recognition of a status under foreign law which can't be obtained under UK law. Indeed bigamy is illegal.

CB: Also overseas civil partnerships - this is a bit more complicated but worth considering. Law says 2 people are considered to be in equivalent of a UK civil partnership if they have contracted overseas under relevant law.

CB: relevant law being [page ref] the foreign law. We see provision that there are 2 kinds - one a specified relationship (will come back) but also any other relevant relationship. We note that polygamous are excluded.

CB: And [page ref] describing foreign contracted relationship that are not specific. And then [page ref] list of specified relationships, including same-sex ones and ones not of the same sex. These are prescribed by secretary of state.

CB: That is, list maintained in the same way as the GRA's list of approved countries/territories.

CB: [Page ref] Act does impose some limits of one or both parties domiciled in E&W when the relationship is contracted it *won't* be recognised if under 18 or prohibited degree of relationship - but *only* if domiciled.

CB: Also exception if manifestly contrary to public policy. But this means - subject to the policy excpetion - says UK will recognise as civil partnership even if it would not be legal eg bcs age if contracted in the UK

CB: So in both cases - polygamy, foreign contracts - it's the overseas law that matters. We say, GRA is the same.

CB: The only control parliament has over what happens in the foreign law is whether or not the country/territory is on the list. SoS has option to remove, but that's the only intervention.

CB: So if we go back to GRA - section specific to EU states. If we look at explanatory notes. [they all read]

CB: Has been amended post-Brexit but point is, how it operated before. Recognition of persons as per the law of the other state whether or not host state also recognises.

CB: for example same sex marriage contracted in Belgium must be recognised in Romania even tho R does not recognise same sex marriages.

CB: Bcs lack of recognition of 'acquired gender' might inhibit freedom of movement.

CB: So to recap - status is governed by foreign law.

CB: And we also say, UK has to recognise nonbinary status, for example if a Dutch person has it and had come before 2021, entitled to have it recognised in the UK.

@threadreaderapp please unroll