American loses UK appeal to become legally non-binary

An American who wanted to be formally recognised as non-binary in the UK has been told by the Court of Appeal their gender identity does not legally exist in this country.

Ryan Castellucci previously lost a High Court challenge to have their gender recorded as non-binary on a gender recognition certificate – a document which changes someone’s legal sex – after moving to the UK in 2019.

They had obtained legal recognition as non-binary in California in 2021, and were issued an American passport in 2022 listing their sex as ‘X’.

Dismissing the appeal, Lord Justice Singh said the issue was “potentially controversial” and was “better suited to resolution in Parliament than the courts”.

At an earlier hearing, the court heard how Castellucci, a cyber security expert from California, uses the title “Mx” and refers to themselves using they/them pronouns.

While they have undergone surgery and hormone treatment, they told the court they continue to use the name Ryan as it is considered unisex in the US.

Castellucci described the experience of trying to obtain legal documents listing them as non-binary as an “ordeal” and the court heard they worried about possible difficulties related to their gender identity when applying for British citizenship.

They also raised concerns about how their gender identity would be reflected on their death certificate, when their US documents state they are non-binary.

Lord Justice Singh, sitting with Dame Victoria Sharp and Sir Andrew McFarlane, said that only 11 countries worldwide, as well as some US states including California, recognise non-binary gender in law.

Non-binary is an umbrella term for those those who do not identify as exclusively male or female.

In a judgment published on Tuesday, Lord Justice Singh said: “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 added that, at an earlier appeal in 2023, the government said “no changes were currently needed and more research and consultation would be needed before any changes were contemplated”.

He continued: “There is no general consensus, either in the Council of Europe or more generally around the world, in favour of recognising non-binary status.

“Furthermore, this is an area of social policy which is highly sensitive and potentially controversial, thereby being better suited to resolution in Parliament rather than in the courts.

“This is not only for reasons of democratic legitimacy but also for reasons of institutional competence.”

Anna Dews, associate solicitor at Leigh Day, the firm which represented Castellucci, said they were considering appealing the ruling.

She said: “Ryan’s only registered gender is non-binary. Despite Parliament legislating for the UK to recognise foreign-acquired genders, the courts have so far ruled that non-binary foreign genders do not count.

“Ryan considers that there cannot be true gender equality without recognition of the fact that not all genders are binary.”