Thread by @tribunaltweets

Good Morning.

Today we will be live tweeting the appeal of Ryan Castellucci (RC) v Gender Recognition Panel (GRP)

RC, a US citizen with non-binary (NB) on all US documentation, alleges the GRP breached their duty by failing to recognise his legal sex as neither male or female

You can read more about the original case on our substack:

RC moved to the UK and applied for a GRC recognising NB status under the Gender Recognition Act (GRA).

The GRA only recognises M or F.
RC was offered "not specified" and continues legal action.tribunaltweets.substack.com/p/judicial-rev…

RC is the first and only person in the UK with "not specified" as their sex marker.

The GRP conceded that offering this status would have 'uncertain legal effect'.

In May 2023, RC was granted a 1 day Judicial Review (JR) to argue on two grounds:

1. GRP’s refusal means he is treated differently from a person from California who are recorded as male or female, and is therefore discriminatory contrary to Article 14 ECHR

2. GRP’s refusal amounts to an infringement of his right to a private life contrary to Article 8 ECHR

The case was dismissed on the grounds below, but an appeal was allowed.

That is what is happening today. Link to the full original judgement is linked
Join us following the case today. Abbreviations in the next tweet. tribunaltweets.substack.com/p/judicial-rev…

ABBREVIATIONS
RC - Ryan Castellucci (Appellant)
AB - Appellant Barrister

ME - Minister for Equalities (Responding)
RB - Respondent Barrister

J - Judge

GRP - Gender Recognition Panel
GRA - Gender Recognition Act
GRC - Gender Recognition Certificate

BC - Birth Certificate

SoS - Secretary of State

ECHR - European Convention of Human Rights

CA - California, where RC is from

NB - Non Binary

PC - Protected Characteristic

EC - Christie Elan Cane (appellant in failed Supreme Court case over issuance of NB status passports)

AC - Approved Countries list (you can apply for a UK GRC more simply if you have a robust equivalent from one of the listed countries (California was removed)

EO - Executive Order (just in case)

The session should begin shortly. You can watch here: youtube.com/@courtofappeal…

Session begins:
AB - Ryan is registered in CA under the law as non-binary. RC has no other designation in the US. Has no registration in UK.
Following hormones and surgery Ryan has taken steps to align with NB.
The question is whether GRA provides for only UK definition

or also allows for other countries definition of gender.

Section 1 sub 2b requires the gender to have been changed under foreign law and so we say it IS covered.

Accept that in UK gender is M/F but UK does recognise alien statuses (polygamous marriage) in some circumstances.

AB - definition of acquired gender accepts that overseas countries accepts that rules are different. Nowhere does it say that only changes of the kind here will be recognised.

The countries on the AC list - if rules are inappropriate they can be removed form the list

Article 14 - if M'F are the only options, have chosen to confirm a benefit on someone who couldn't get a GRC here (California under self ID) from M/F but not to someone else who doesn't meet the criteria here (non binary).

Interpretation of act - wording, consequences, purpose

of AC list and interpretation for RC.

AB - First the wording. Subsec 1 says who can apply for a GRC, gender is used in 4 contexts here.
11a refers to current UK lived gender
"a person of either gender" - refers to legal gender in UK
11b gender acquired abroad

"a person of either gender" also later means acquired gender under foreign law.

AB - words have different meanings in different contexts.

AB - pg 41 sec 25 - No definition of gender in the act.
Compare with EQA (Equality Act) sex is man or woman, man means male, woman means F

AB - so Parliament could have limited the meaning of gender but chose not to.

2a concerns UK changes of gender
2b concerns under foreign law, that countries law determines their gender

Opening of subsec1 - person of either gender.
Person born in UK is registered M or F

AB - under foreign law people usually have M/F at birth. Germany however allows a third gender diverse option, AB also says intersex.
A german diverse person could later apply for a M/F GRC in UK - how would they recognise that for a GRC. Submits either in that isn't limiting.

J what does either mean?

AB - intended as a describer, rather than a limit.
J - it's meant to be all inclusive? Might these rights imply it doesn't matter what your previous gender is?

AB - yes. It's about the change. And changes abroad follow foreign approaches.

AB - Parliament used the word gender in 4 ways in one section. Didn't limit it's use.
Eg. claim for JR on immigration. Proper interpretation of Immigration Act. Para 9 sub sec 221a note the wording. Argued "appeal" had a single meaning in a para. Refers to judgement of that case

*everyone reads*
AB - judge resolves in para 35, that's my first example (doesn't explain).
AB - Next e.g. Assange case, argued over meaning of "judicial authority" in extradition law. Art 6 para 1 and 2. *everyone reads*.
AB - court concluded executing judicial authority meant

AB - Court.
AB - Look at page 707 please read judgement.
*everyone reads*
(sorry can't tell you what they are reading)
AB - Then read page 688
*everyone reads*
We say words mean different things in diff context, even in same subsection of an act.

AB - To the 4 criteria for GRC. In a domestic case gender dysphoria diagnosis, living as intended, intend to do so for life, evidential requirements (last 2 by statutory declaration). GRP scrutinises this evidence - panel needs medical and legal members.

AB - alternative route - living as for 6 years, they can rely on surgical proof rather than diagnosis etc and 1 not 2 medical reports.

Foreign case - only asking if changed as a matter for foreign law. a. country is approved and b evidential requirements met, show it was legal..

AB - in that country. then can be determined by a single legal GRP member (as it was for RC). Special circs apply if person is married. Not in this case.

May have acquired foreign gender under 18 abroad, not allowed in UK.
Application for GRC can only be done over 18.

AB - Foreign countries may never have to prove GD, live as gender or intend to for life. Could do so to get women's pension.

J - are there other countries where gender is Self ID?

AB - yes. Although RC has GD and surgery in addition to legal Ca recognition.

J - so even though meets more than the self ID requirements here only possible if M/F

AB - yes. But you have to have gone through the foreign process under the act. GRP has to be satisfied it's happened under the law of an approved country or territory.

AB - Parliament could

AB - have placed limits on order making power. Such as must be diagnosed GD, surgery or limited to M/F. But did not. Left it entirely down to the SoS and the procedure.
9 months after the act, the first territories order was made. Gov stated in explanatory note was had to be...

AB - as rigorous as the UK law to be on approved list. The act doesn't contain a limitation, or read into the act because of an explanatory note.
It cannot say that if a country changes it's law, the act changes. It doesn't mean that when Ca changed to self ID that UK GRA changed

AB - When RC applied for a GRC, AC list included state of Ca.
Minister's (Thompson?) statement notes Australian and Canadian territories and (lists other countries) provide for NB gender. Germany also noted as having gender diverse option (is/was?) on list too.

AB - Malta's law for eg, (Malta is or was on the list) NB is defined as everything other than M/F.
Another Self ID eg. Child under 16 can have gender changed by person with parental responsibility. Also has a foreign recognition route like the one we say GRA means.

AB - Maltese law allows for gender markers from abroad which they themselves do not allow for under their own laws.
2011 AC list replaced by 2024.
J - Gov eyes must be open to other countries laws, list is only on jurisdictional basis, not limiting to particular parts?

AB - not saying SoS can't do that, just that under the 2011 list SoS hadn't done that and that is the case we are dealing with.
AB - back to 2024 list, only Germany remains from the Self ID countries but India was added and they recognise a third gender.

AB - can also see Ca removed. Doesn't impact here as saving instrument included.

J - explanatory note - clear indication their system isn't as rigorous as UK. No note about third genders.

AB - yes, uses loose term rigorous and cannot change the Act, contains no limitation

AB - to M/F. No note on not having countries with Self ID

J - in 2024 UK included India, presumably with eyes open to third gender?

AB - yes it's in their witness statement.

J - so if an Indian citizen brought a similar case you hold RC's case is the same?

AB - yes, the case would be the same.

AB - Back to NB gender. What the act provides if a recognised foreign state.
1. If criteria are satisfied panel must grant a GRC.
2. If granted must issue GRC.
3. Modification of UK birth register and addition to GR register

AB - stage 4. Where cert issued, becomes for all purposes that gender.

AB - Defines gender as that defined under the foreign country. There are brackets in the Act wording which AB submits, do not apply if acquired gender is NB.
AB - brackets are illustrative not additive

AB - if they were, they would be cutting down the meaning of gender. Insists they are not.
Consequences of GRC, for all purposes is qualified by contrary provision and all other subordinate provisions. FOr example - Doesn't impact mother/father status as in McConnell.

AB - consequences of NB. 1. Minister says threatens coherence of legal order , based on M/F. 2. would compel reform which would be burdensome.
AB - we say this is not the case. Practical consequences modest.
J - please expand into criminal law.
AB - already addressed...

AB - refs page on gender specific offences.
J - difficulty, eg FGM, specifies that being female is necessary for the offence.
AB - many Acts are predicated on M/F, if UK had NB GRC for someone it will be up to interpretation as to whether NB fitted M or F

AB - might include a chromosomal test for example.
J - or the proper interpretation of GRA could be read in context of rest of UK law? SoS believes that is a better way?
AB - what we have is a distinct carve out in act for foreign law. Can I address both of those qus.

AB - 1. what is the impact of recognizing alien law for UK law. Will talk about polygamy.
2. what does it mean for the NB person?
3. what public duties would be due to a person with a NB GRC.
Impact on domestic law harmony - even if can't be obtained here, even if

AB - an enanthema to UK values we do it.
Polygamy is an enanthema here and not legal, but we recognise.
Hyde and Hyde a divorce case in Salt Lake City about a polygamous marriage. Was held to be not a lawful marriage *everyone reads*

FYI only not being discussed they are reading* Wiki on that case - The case of Hyde v Hyde in 1866 established the common law definition of marriage, with the court denying the divorce on the grounds that Hyde's Mormon relationship did not constitute a legal marriage in England.*

AB - please read these 8 lines.
*everyone reads*
AB - heretical and revolting to UK law, but did recognise for other purposes later.
For those not domiciled in UK.
1973 matrimonial act recognised those abroad
J - again what about the criminal context? It's about

J - consequences on others unless criminal law were interpreted as to the issues here. Someone could escape criminal consequences or not be protected by criminal law.

AB - at this stage just looking at repugnant alien laws being recognised by UK. Parliament was in no way

AB - approving, or changing our laws. It just recognises status under other countries law.

Now civil partnerships. Eligibility in English law precludes those who are siblings. At the same time the Act allows civil partnerships acquired under foreign law.

AB - Note the relevant law is the foreign law, as it is in the GRA part we are discussing.

Allowed specified relationships are outlined. SoS empowered to change what those specified relationships are. The list includes Ca and therefore partnerships including NB people

AB - Also, in Hawaii it includes reciprocal relationships - widowed mother to unmarried son. Only limitations on these reciprocal relationships are that capacity is met under foreign law and that it is validated in that foreign country.

AB - sorry page missing from Act given

*papers being given out*
AB - sets out other limiting conditions. Only applies if one party was in UK when partnership was registered. If so if one was U18 or falls under prohibited relationships not allowed. If both are abroad, no restriction even if they were U18

AB - would need to be manifestly contrary to public policy if consent is to be questioned.
J - how do they determine that?
AB - have to read that with another section. Parliament is thinking of prohibited relationships.
J - because it is allowed in some parts of the Act?

J - there have been occasions where financial benefits of civil partnership should be given to long co-habiting siblings, but because of prohibited relationships it hasn't.

AB - accept Hawaiian concept isn't a sexual relationship either, it's practical, my point is that civil

AB - partnerships (CP) abroad are sanctioned here on totally different grounds to CP's issued here. Parliament is willing to give effect to statuses only allowed under foreign law.
They put in the ability of SoS to change the circumstances.

AB - To the GRA - concept of changing to NB is antithetical to our law, self ID is antithetical. But so is not having a GD diagnosis - but we allow it.

Third example is the recognition of marriage under GRA.

Section 11A addresses GRA on foreign marriage.

AB - Protected marriage is that in any country other than Scotland. Foreign marriage is any other than a UK marriage.
If a marriage is foreign it continues under GRA even if type is not possible in the UK.
Saudi for eg, woman changes gender in UK, Saudi law applies to marriage

AB - Saudi does not allow same sex marriage, but UK will continue to treat it as a marriage.
EU law - marriage is at the state level, no requirement to recognise same sex marriage in each country. Right to free movement however may require status recognition anyway.

AB - argues this means recognising a different states laws does not disturb domestic law.
Refs EU case - Coburn (or Cockburn?) - *everybody reads*
Parliament can and does recognise foreign law without a threat to domestic law. Recognising foreign NB doesn't threaten M/F here.

AB - all law here is based on M/F. NB can be accommodated.
What would the consequences be? indiv would be NB for all purposes, qualified by any other enactment or subordinate legislation. It may be impossible to include NB people where it is different. Eg pension ages

AB - A proper interpretation of the Benefit Act would be needed. A chromosomal test would be required.

J - does this section 9.1 mean what you say? For all purposes. There is an express exclusion of this later. Are you saying just do the best you can?

AB - it may be the proper interpretation of an Act is that yes you have to be M/F. You could ensure they are covered by a chromosomal test. Ref's Supreme Court For Women Scotland case.
J - what did McConnell say?
AB - not sure, will check.
Look at Bellinger case.

AB - ref to 2 paragraphs of Bellinger. House of Lords held in absence of domestic legislation recognised marriages in sex change cases. *everybody reads*

Parliament said people have to be fitted into categories as best they can be.

J - posits that there is a means of determinin

J - it in intersex cases?
AB - yes, even chromosomes don't always align. We say "chromosomal gender" would be the test, but it depends on what the Act says. Doesn't require the impossible.
AB - accept working out how to integrate NB into binary system does impose a burden.

AB - but Canada, Germany etc have had no problems integrated. These issues already exist, aren't created by a NB GRC. If a NB German applies for benefits in UK it would have to be worked out under that legislation.
All of RC's documents record NB. Everyone already has to figure

AB - it out in our systems.

J - they do that by some form of binary decision. What you hope to achieve is a free standing status in UK law, so that agencies don't have to do it?

AB - No, public bodies determine by proper interpretation, will have to categorise NB's with GRC

AB - if they can't they simply can't take advantage of the benefit.
J - So they would be in the same position they are in now?
AB - A NB certificate won't make a blind bit of difference.
J - so what is the advantage of having an NB certificate?
AB - coming to it

AB - what is the point of a certificate? Will come to psychological impact and sensitivities.
AB - Won't make a diff to bodies if a NB GRC is issued. Computing systems may only record M/F. Hospitals and prisons differentiate by gender. domestic abuse refuges are only for women

AB - my submission is that it wouldn't imply any duty to change systems or administer law differently. GRA doesn't impose a duty to treat as GRC state. There is no other legislative situation. Cannot claim discrimination under EQA as an NB, although they are protected under GR

AB - ECHR might require adjustments if it were disproportionate not to do so. But it is inherent in rationality and proportionality that no undue burden would be placed on public systems.
J - should it be case by case, or the consequences more broadly. Your examples aren't

J - burdensome, but as a whole....
AB - I accept that adjustments would need to be made but it wouldn't be undue. Looking v broadly.
J - my lady is right, the measure of that burden would have to be case by case.
AB - it would be absurd to ask this if impact were burdensome

AB - eg HMRC isn't it rational/proportionate for an NB person to be treated as M/F (then references prisons, he may have meant HMP)
Prison could say we recognise you are NB, but we have to put you in M or F. Could only argue if it were thought irrational or disproportionate

AB - the requirement to consider is a burden, but in this case it doesn't add to the burden as RC is only NB.
J - There is a duty, for all purposes.
AB - disagree it is a duty. It is a fact of law, whether it imposes a duty is a different question. Obligation to think exists

AB - when dealing with biometrics of RC's passport, when DVLA issued a license they had to think. Both issued in Female.
J - that brings us to hurt. To be issued in F when that is neither the birth or acquired gender...
AB - to go further it may be that domestic law

AB - needs changing. See Elan Cane (EC). My submission is far more modest but advances things a material step.
EC case is different. Sought to compel passport to issue a NB doc. With security and administrative consequences. Here it is less burdensome.

AB - GRP can issue on system not specified, RC happy with that IF it it is recognised that covers NB.

AB - if consequences are minimal, why does RC want one? Minister asserts RC is a man for all purposes. Only registered is NB. It is very hurtful to RC to be misgendered

AB - it is clinically noted that RC suffers psychological distress not being recognised as NB.

In McConnell, read Hale's judgement *everybody reads*

Even if some still record M/F + not possible to accommodate, for state to recognise NB is about dignity and hurt

AB - RC works in cybersecurity and it causes issues with identification to not have consistent gender marker.
Even though no legal obligation on bodies, they are bound to foster good relations. RC's employer accommodates this. A GRC is likely to help further.

AB - purpose of foreign law recognition
Goodwin and Bellinger said nothing of foreign recognition. Reasonable to say foreign law should be similar to ours to be an AC.
In providing for AC's which do not meet our criteria, the UK respects the rights of foreign citizens.

J - it also allows for stability of status. When people cross boarders, we need highly skilled migrants and to recognise their marriages - I suggest that is part of why.
AB - yes and the EU also does that. I respectfully agree.
Supreme Court judgement in Elan Cane, NZ was

AB - considering NB for passports. Gov was alive to this. But it doesn't matter as already recognising foreign laws unlike our own. Didn't say certain categories of gender change, specified countries instead.
Please look at Quinterville (?) *everybody reads*

AB - Human Fert + Embryology Authority Case about human cloning. concluded that kind of embryo wasn't a normal embryo even in advance of one being created. Determined whether they were and would be covered by embryo related legislation. Wilberforce's judgement *everybody reads*

AB - if a case covers dogs, it covers embryo dogs even if not yet possible to create. They are the same genus of facts

NB is also within the same genus of facts as M/F . As foreign law expands and contracts so will the facts contained within the genus.

AB - How the panel interpreted the evidence.

Letter from chair of panel - please read from The situation is that....*everybody reads*

We say the analysis in that para is correct. The only remaining issues is what is the gender being recognised as... we say what CA law says.

AB - any questions on the interpretation of the act?

Article 14 next. Even if reading is that M/F are the only acquirable genders, it is then over to the foreign law paragraphs. There would be no domestic law principles changed, GD diagnosis stands.
EC is different

AB - NB isn't recognised under domestic law.

J - assuming GRA provision for foreign law, Ca is self ID. Sir James says that's fine as means are foreign, here it's the ends that are the issue.

AB - I say the ends is the certificate. It doesn't say you can only get M/F

AB - the comparison is 2 people who can meet the foreign route to a GRC by Self ID. Someone who wants M/F can get it. The other who is NB cannot. What is the justification of denying the benefit to one of them. That is the Article 14 point.

J - what is it you are relying on in Art 14?

AB - I believe it is sex, but if I'm wrong I can rely on "other status". Our argument is different to Elan Cane. We are not saying there should be broad recognition of NB in the UK as in EC. Just recognition of foreign law.

AB - RC's status under Ca law, body and legal status all align with gender. Whether this is sex or other status doesn't matter. Differences on immutable characteristics require weighty reasons to justify different treatment.
Proportionality balance: SoS relies on administrative

AB - difficulties and burden. But we say this doesn't cause more of a burden that recognising self ID as M/F, or undermine domestic law. It won't impose more public duty, save rationality or proportionate-ness.
Impact on appellant, it is of value, recognition, respect and

AB - mistaken ID impacts. There are not very weighty burdens and do not out way the impact on the individual.
Human Rights Act, is it possible to read this without turning legislation inside out? Accept binary gender is part of the grain of UK law, but not of Sec 12b

AB - if court agrees and Act cannot be read differently we ask for a ruling under Section 14

J - would a declaration of incompatibility mean domestic law is also not compatible? Will the next case not be a UK person bringing a case on grounds of nationality?

AB - Would have to wait for that case. If ministers case is well founded, it should stand in that case. But that is not our case.

J - stopping for lunch.

@threadreaderapp please unroll