Thread by @tribunaltweets

We will shortly be covering the afternoon Court of Appeal session 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 M or F

This morning's session is archived here: and further details of the case including abbreviations and earlier hearings are in our pinned tweet and Substack.archive.ph/1NfmR

We resume.
AB: asks to make a point answering Q re AG and other legislation. In EC egs were given re binary legis and FGM Act. Here is FGM Act and copy of A's case in FWS case. In 1.1 of FGM it refs physiolog factors and refs girls. In section 6

AB girls is defined to incl women. A TM may have physiolog characs in 9.1 giving effect suggested earlier and might exclude from protection as won't be a girl. This Q was confronted in FWS case. Examples were given re AG for all purposes.

AB Difficulty arises in binary and NB cases, at core of the judgment in Nov of FWS.
J Any argument to follow?
RB Can we refer to EC case? On p1071, para 52, which I invite you to read to para 54.

RB Point to come back to is GRA is put in proper context incl all the other legis around it, premised on MF distinction. Interpretation view expressed is in (e) following Goodwin is that all are in 2 genders. We submit this is correct interp of how the GRA operates

RB That is correct re binary and it's analysis of broader legis frameworks. 2nd sentance of 52 is partic accurate and nothing outside MF is recognised. Central to reasoning of Lamb case is reasoning shld have been consistent and not randomly added legis.

RB The GRA was added after Bellinger and Goodwin. Made in that legislative context which is significant. Parliament was remedying law wrt transexuals and 114 of their judgement. This is an area of legis policy charac by controversy in policy and taking small cautious steps in

RB legisaltion. Where we are re rest of the world and only 5 of 56 European countries have a NB status. OLF had to be brought back to this. Lord Willerforce's original comments need to be looked at in full and not pieces taken out. Is RC of Nursing judgement.

RB The partially cited passage ends between e and f. Can I suggest you remind yourselves on this re enacting will of Parliament? [reading]
RB There's a clear note of caution, and remainder can be taken as creating catagories. The passage in the raw emphasises taking small steps

RB in controversial social issues. Moral and social judgements where ppl differ. Spirit of what Parliament had authorised. [reads out] Theme of the subject mayyer and this is for Parliament due to nature of issues. This shows it shld be legislative practice.

RB In that spirit, referred to and applied cautiously,..I'll show you the passage about the spirit...para 34-5. A specific application is consistent w the spirit of it. Caution is needed due to context. The interpretation issue: [1] Natural use of words is entirely clear.

RB We submit the binary basis of Lord Reed is correct from the clear wording of the Act, in UK and foreign law. Both proceed on basis of binary. Section 1.1, is evident at time of applic is made by either gender. Either can only be binary concept and describes living in the

RB other gender which is binary. Either or other gender and you don't need to use MF. It all relates to TS. Either in domestic links to 1b, having changed gender. A binary concept is also in 2b. Everything then follows from this including Acquired gender.

RB This is clear in legislators words, and no ability to import a different understanding of gender - by ignoring either or or. Be submit this is clear and 9.1
J Mr Butler accepts most of what you say re domestic but foreign law and he says read the words literally. CA recog NB

RB The tell is 1.1a and b refers to a binary concept. I don't need to read extra words
J A person of either G, having changed G. They are in category of having changed G. Why can't NB work? They have changed
RB A person who was of either G and has changed? Refers to possibilit

RB at time of applic.
J It introduces that has changed.
RB But they're not MF at point of applic..
J They have after they've applied be of M or F?
RB Yes, but the A isn't. It reinforces the binary nature. It's either present tense at point of applic but doesnt cater for a

RB gender. In 9.1 on p31, this sets out consequences of a GRC and this applies to UK and foreign applics. So that...he didn't have an answer and was just illustrative language. We submit is exhaustive language and doesn't give egs. It applies (AG) to domestic and foreign.

RB Changing G or AG is covered. He just asserted it was illustrative which is very telling. The divisional court alighted on this in some force.
J Will you come to section 9.3?
RB Yes, shortly. Here, there are exceptions that Parl made provision for. Eg gender specifc offences

RB So it thought it through and addressed the consequences of 9.1 position. Eg peerages. Also other provisions rely on binary nature listed in para 118. MLF said there's egs where court has accepted using the same words, eg the Assange case where words mean something different

RB The Parl draughtsman wld mean the same meaning of the word in the same sentance. They're very careful. In Lord Phillips judgment, 75 indicates why competant authorites were doing different things despite using the same language. It doesn't import the same meaning and he can't

RB expand out from that. S1.1 is drafted as is, introducing either/or and 'so that'. Re the correct use of gender in all these circumstances. We dont think Assange is powerful here. (2) Gender is the same concept used throughout and can't mean different things in UK and abroad.

RB Esp if is a foundational concept. It wld be used w particular care. The difficulties that flow from this foundational word is telling - a point made by the court earlier. MLF has to accept domestically that living in the OG is binary. So how can the rest of the case survive?

RB The key is 1a and 1b read naturally and sensibly. The foreign part he says in r'envoir, but this isn't an answer. What is its extent? it isn't a solution as it begs the Q. What is its nature? It links to a change and the true extent of the r'envoir. M to F and vice versa

J do you accept the way could be differently elsewhere?
RB Yes, but the control to change things, in 2.2, [reads re panel and AC] Controlling concept is changing gender so you're thrown back to 1.13. in 24.3 it provides affirmative resolution. You cant under 2ndary legis power

RB say we'll allow NB status in the UK. U can change the 1ry legislation and ask foreign powers to [missed] Some states have come off the list as they've allowed selfID. We wanted roughly equiv safeguards. Nothing in primary legislation to constrain that.

RB The divis court said introd of the same word meaning different things wld turn things into a protean muddle. (3) RCN judgement and e'thing being MF only and the nature of these issues, it's inconceivable that GRCs wld be expanded beyond the binary. It wld have made it clear.

RB Peerages and criminal offences make it clear it considered issues. Domestic applic is constrained in the way we submit, namely between M and F. It wld have made it clear if it wanted it different. (4) His approach re Art 14 wld lead to incoherence in legis and application.

RB It subverts legis practices. The divis court has looked at this closely. Emma Thompson's WS goes through comparitors and admin burdens this wld create. If u allow NB to enter UK legal bloodstream it shld be on a considered basis and look at all implications rather than in bit

RB If you have a 9.1 provison, which isn't neutral, it requires a mandate. MLF saying don't worry about that as not all legislation wld be impacted, it wld raise all sorts of issues on judgements incl discrim. Y'd dump this on the courts. It's not the way to introduce this into

RB domestic law coherently. ANd y've done it for this thing only. Do u do it for other statuses, eg intersex? U run the risk of creating difficulties, eg sec 20 and criminal law, which is a real concern. FWS case shows there's plenty of room for argument with meaning of word etc

RB Debating these things being a good thing is a trite answer. Miss Thompson has gone through this dept by dept, eg prisons. It isn't neutral. AG under domestic law u have to treat them as NB. How wld this work? It's a signif problem at policy and practice level, which wld be £

RB and complicated. It's inconceivable they'd make changes in this way. In 9.3 MLF says don't worry as it provides an answer. But sub1 is subject to provision in this act, or any subordiante legislation or enactments. These exceptions from AG in the future doesnt sort coherence

RB issue. It alters the law and kaleidoscope in which decisions are made.
J It doesn't mention the race relations act. You cld in principle have primary legislation that changes the law and admin policy. So as soon as u get a JR case, on AB's argument the admin wld have2change?

RB Yes. Y'd have to say legislation trumps policy. That has to be yr default position. They absolutely would make these arguments down the line. 9.1 w/out exception is new territory. There'd be debate about what particulars mean. The point is it wldn't be coherent, and cld be

RB inconsistently. The important move would be from NB from abroad. Could have nationality discrimination if u only allow it in this way. Point (5) is about orders, but u have our case on that. ALl the base provisions, esp 2.2 are based on gender. Wld be ultra vires to say NB

RB comes in. What is permitted and what has been focussed on is a look to see if M to F and F to M is rigorous and applicable here. If introduced NB in India, you don't have to chop out words to exclude NB as you have the wording of 2.2.

RB That's the consequent of the vires control. Appropriate rigour is in place. All these points are spelt out in the explanatory memoranda, eg 7.3-4 of 7.5 order in 93b. [finding pages].

RB They're all in the 2005 order. Applying the same rigour as we do. The Lords made this very point. 93a para 4.1, shows the sequence before the prescription of the 1st territory on the same date. there was a delay in the commencements that allowed these orders to be made.

RB In 2011, y'll see the list is oscillatory so some fall out and some stay in but the intention re the orders stays the same. There's more explanation in 2024 and 101b re what is being done and why. Wanting the same rigour as in the UK. It's partly to do w introducing selfID.

RB Wanting more overt criteria if I can summarise it in that way. Coming back to the 1ry legis, it becomes clearer. It isn't r'envoir of introducing foreign law into our system. The split enables judgements to made about rigour of MF transfers.

RB A couple of sweep up points: points made about recog by foreign law, eg polygymy and r'ship boundaries we've dealt with in 16 of our submission. You can have Parl deciding it wishes to allow particular statuses to be recognised despite being controversial.

RN But this doesn't help AB but harms his case. Making controversial decisions it does so in turns very clearly setting the linits and recognition of this controversial foreign laws.
J What were we shown? Civil p'ships, polygymy? Some changes to primary legisalisation made by

J 2ry enabling power?
RC I keep coming back to Willerforce. When shld I allow it? What are the risks? Parl legislates and is subject to oversight in that way. There was a ref to EU free movement, which are different contexts and make no concession and we recog the EU recognise

RB: Turning to Art14 - and noting that Art8 has been abandoned. There is clearly overlap - it's hard to see something that breaches 8 does not breach 14 too, and the justifications permitted are identical.

RB: So we say the judgment in this case, re 8, applies also here re 14. There is no positive obligation we say to recognise 'NB'. As found in Elan Cane. There is no European case active re this.

RB: And we go back to AB case - reevaluation by Supreme Court, key test-setting is para 57, says 'fully confident' twice. Must be 'fully confident' that Strasbourg would take a course, before relying on the assumption.

RB: The parties to be considered are the state and its systems; other member states; and individuals. Have pretty much covered the first two in subs so far - and see also Elan Cane and the judgment below.

RB: Position here is set out in the primary legislation - which is parliament's position - that for foreign route it means only M / F.

RB: These are issues of social policy, complex issues, must balance public and private interests (see Elan Cane again).

J: Sir James are you intending to comment on this from McConnell [gives reference - 81] and Mr Butler may wish to comment on this later. This is slightly different from Wilberforce, slightly different from usual arguments in matters like this.

J: It's about the routes that could be taken - consultations, Law Commission. Any comment?
RB: Yes, was going to look at this para. I have been talking about consttituional routes but my lord is correct, this adds element of democratic accountability.

RB: And sits alongside Lord Reed in SC - that you don't look at the parliamentary debate. Thank you my lord for drawing attention to this.

RB: I have made the points I wanted to about incoherence and the need to address this sort of change across the board not piecemeal and opening up to legal challenges in all sorts of areas. And administrative practices.

RB: And all of this is covered in detail in Ms Thompson statement, and in these sections of the earlier judgment. This is a matter properly for parliament to deal with.

RB: And re other member states - again see Ms Thompson's statement, and para 33 of our written skeleton today. Main point is: only 5 out of 46 states recognise 'NB' and only 3 'intersex'; and only a further 11 countries worldwide have 'NB'

RB: And re the individual - we of course acknowledge issues of dignity and so on but our point is that this must be a balancing exercise. Divisional court looked at this in detail - clearly had doubts re Joubert's evidence given.

RB: Can fairly be pointed out - see our skeleton - there are at least some respects in which this individual is less disadvantaged than some of those in EC passport case and the transsexuals in Strasbourg's cases.

RB: We do not accept that the appellant was ever at any real risk of committing a criminal offence re vetting, no risk of charge even let alone conviction. See Ms Thompson's statement.

RB: Appellant wished to and could put X instead of M or F, even tho the authority had to translate to M/F later as those are the only options.

RB: [have lost thread of a short bit - difference between a system that imposes M/F and one that doesn't, I think] The fact that a small state like Malta does is not relevant here.

J: Malta has long historic relationship to UK. And shows that a legal system *can* do this. Your argument is not that it's impossible completely, but that if it is to be done it should be Parliament?

RB: Yes exactly. None of my arguments rely on 'but it's impossible'.

RB: The 'art of possibility' comes in when it's about interpretations that are allowed.

RB: So there are a range of approaches when there is an incompatibility identified - whether a matter for parliament or court or whatever.

RB: MLF argued that the fact that all *other* legislation cannot accommodate 'NB' does not mean *this* legislation can't. But that can't be right because [technical point re how processes can address this 'incompatibility' thing]

J: Thank you Sir James. Mr Butler do you have more to add?

AB: Draw attention to divisional court - wrong to attach any weight to Lord Reed at paragraph 52.

AB: The passage you were asked to read, Wilberforce, please note that is part of the *dissenting* opinion - not the main ruling.

AB: Returning to GRA itself - use of "either", "the other" - this is pre and post change. The 'either' cannot be the current 'gender' under UK law - as there'd be no need for GRC. Must mean the 'gender' *before* any foreign GRC

AB: Context is everything - 'gender' is used in a number of different contexts in this section. One can't read 'either gender' into 'gender under the law of the other territory'

AB: Sir James says 'gender' is a foundational concept - that is begging the question that's before the court. One can't rely on 'foundational' as overriding the statutory definition in the law itself.

AB: So there is nothing muddled in saying that 'gender' in the UK law may not mean the same as 'gender' in the foreign law.

J: You are saying, read section 1 as 'either gender' but then for overseas as meaning 'gender acquired overseas'?

AB: Yes that is one way to read it. Another way to look at it is to divide S1 as it applies to UK and overseas applicants. At start it must mean the before-change status, but when it's talking re overseas applicant it *must* mean the pre-change state, or a GRC wouldn't ben needed

J: What if it meant post-change?
AB: In my submission it doesn't, it applies to pre-change. Because if it meant post-change, the section re overseas applicants is otiose.

AB: Sir James said this would be dumping the issue of how to approach any other legislation impact. But that's already the case. Court would already have to eg work out how to classify applicant in a benefits case.

AB: We see this in For Women Scotland case.
AB: And re administrative impact, and Ms Thompson's case - duty to accommodate. I disagree there's a duty as such. It's merely about recording the fact of C being 'NB'.

J: I have not understood. The first leg of eg a judicial review would not be 'you didn't record' it would be 'you erred in law'.

AB: Let me give example - prison with policy that men and women housed separately. Suppose a prisoner has 'NB' cert. The prison authority would have a duty to record / recognise the fact of 'NB' - but not to house separately. Could choose where to house as M or F.

AB: Just like, prison would have to take account of the legal fact that person has a US 'NB' cert. What to *do* about that fact would remain up to the prison.

AB: Re recognising alien foreign status - Sir James said parliament considers those explicitly, but that this application opens door to an unknown range of foreign statuses.

AB: Not so - let's look at civil partnerships again. Recognition has a specific list of equivalents in schedule, but there's also a section on general recognition principles eg cannot be bigamous, cannot be a conversion from a marriage

AB: So the Hawaiin relationship we discussed - if not on the schedule list, would get through on this general section 114.

AB: Re Art 14 - today is a very different submission from that made in Elan Cane. If it was the same you'd need Strasbourg's view. But in this case that's not what I'm arguing.

AB: Am contending for an orthodox reading of Art 14 - the conferring of a benefit. See AB here. One doesn't need a Strasbourg reference to make a case re principles already estabilished.

AB: And re McConnell - the Q of processes and democratic accountability. If I am wrong about the impact of a 'NB' GRC then I would accept that the Q of whether to accept those responsibilities is for parliament not courts.

AB: But the Q of whether such duties *would* be imposed in fact is a matter for the courts, this court.

AB: So the minister's arguments about the weight on the state would then fall away.

AB: Those are my submissions unless you have questions?

J: No Qs. Thank you to everyone has played their part in the case today. We will reserve our judgments and let you know when we have a draft available.

J: I repeat my thanks.

[END]

[Abbreviations note]:

We have used AB for the Appellant's Barrister (for Ryan Castellucci) and RB for Respondent Barrister (for the government and the GRP).

During the day we learned that RB = Sir James Eadie KC, and that AB = Mr Butler.

The Judges were
Dame Victoria Sharpe, president of KBD
Sir Andrew McFarlane, president of Family Division
Lord Justice Singh (Rabinder Singh)

[END OF NOTE]

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