A non-binary American living in the UK has been left in legal limbo after having their legal gender recorded as “not specified” by the Government.

Ryan Castellucci, who came to the UK in 2019, has a birth certificate from their home state of California that lists their gender as non-binary, while their passport has an internationally-recognised “X” marker – meaning neither male nor female.

However, they ran into problems when applying to convert their overseas gender recognition documents into a British Gender Recognition Certificate (GRC) – a system that usually only permits “male” or “female” to be listed.

Swathes of UK law also currently rely on a person being one of two legal genders, including laws relating to marriage and having children.

A back-and-forth with the Government eventually saw a Gender Recognition Panel insist the UK has “a binary system”, but Castellucci argued there is no such restriction if someone’s gender identity is already recognised overseas.

They were eventually told they had the option of having “male”, “female” or “not specified” listed as their legal gender, though the Panel warned the latter would have an “uncertain legal effect”.

The cybersecurity expert told i: “I don’t know what my legal gender is in the UK… as best I can tell, nobody’s ever been issued a certificate before that says ‘not specified’.

“I’ve asked the Government, they refused to comment. Nobody really seems to know, and that’s just weird.

“The options were something that isn’t right, or something that doesn’t resolve the ambiguity.”

Faced with no other options, they opted for the latter – and their application was granted, recognising their gender as “not specified”.

As gender recognition laws typically only allow UK citizens to change between male and female, it is believed to be one of the first times a person has been recognised as “not specified”.

But the lack of clarity has created issues when interacting with other bureaucratic systems that only recognise two legal genders – such as when applying for biometric residence permits, applying for a provisional driving licence, and even undergoing background checks for work.

While they would be happy in principle to have their gender listed as “not specified”, Castellucci has had no success in trying to understand what it means in practice – and are worried about its “uncertain legal meaning”.

Furthering the legal uncertainty, they are still yet to be issued their Gender Recognition Certificate despite having the application for one granted.

They added: “In principle, not specified might have been OK. (But) there are forms that need to be filled out, which ask for my legal gender (as male or female), and tell me that I would be committing a crime if I give incorrect information, and that’s really uncomfortable.”

Law firm Leigh Day has filed a series of applications seeking clarity on the issue, including an application for a declaration that the GRC means Ryan’s gender “is for all purposes non-binary”. A directions hearing will take place at the High Court on Friday.

Solicitor Kate Egerton told i: “One of the grounds of the challenges is they’re proposing to issue a certificate which has an uncertain legal effect. What Ryan wants is difficult for us to clarify their legal gender in the UK… we’re asking the court to declare the legal meaning of ‘not specified’.”

Ms Egerton said that while the case is “narrowly focussed” on the issue at hand, the case could raise awareness of issues for people seeking wider non-binary recognition in the UK.

A number of countries recognise non-binary or third-gender people including Canada, Australia, New Zealand, India and dozens of US states – but the UK does not, which Ms Egerton said is “very much out of step with the international picture that’s emerging”.

Gender recognition in the UK

How gender recognition certificates work in the UK

  • A gender recognition certificate (GRC) is given as to legally recognise that a person’s gender is not the same as what they were assigned at birth. This is known as their affirmed gender.
  • Once you have the certificate, it means you can update your birth certificate and have your affirmed gender on your death certificate when you die.
  • It also means you can get married or form a civil partnership in your affirmed gender or update your marriage or civil partnership certificate.
  • You do not need a gender recognition certificate to update your driving licence, passport, medical records, employment records or bank account.
  • Non-binary genders are not legally recognised in the UK meaning you have to choose male or female, according to the UK Government.
  • A gender recognition certificate costs £5 to apply but people on benefits or a low income might be able to get help paying the fee.
  • Once you apply, the Gender Recognition Panel will assess your application to see whether it meets all the legal requirements.

How is the British Government at odds with Scotland?

  • Scotland has created a new Bill to improve the process for people applying for legal gender recognition, arguing that the current system is lengthy and intrusive.
  • The process for obtaining a gender recognition certificate applies across the devolved nations under the Gender Recognition Act 2004.
  • Current rules require a medical diagnosis of gender dysmorphia and applicants need to provide supporting evidence. Moreover, 16 and 17 year olds are not allowed to apply for a GCR.
  • The Scottish Government has said the proposed Bill is a “balanced and proportionate” way of improving the current process.
  • The Bill was passed in December 2022 but Westminster has prevented it from becoming law by blocking it from Royal Assent – the final stage of any new bill.
  • This is the first time Westminster has used the power since devolution nearly 25 years ago.
  • The new Scottish First Minister Humza Yousaf has indicated that he’ll fight the UK Government in court on the matter.

The British Government did consider whether to alter gender recognition laws to include non-binary people under Theresa May. However, the plan was deemed too legally complex – before watered-down gender recognition reforms were abandoned entirely under Boris Johnson.

Non-gendered campaigner Christie Elan-Cane lost a case in 2020 seeking to obtain a passport with an unspecified gender, losing a battle at the High Court and Court of Appeal.

Castellucci said attitudes on trans issues in the UK had surprised them, adding: “I’ve read through the Government’s documents when they have evaluated giving non-binary people legal recognition, and it really just seems to boil down to, ‘we would have to change some computers, and that would require effort’. Like, really, that’s how little I and many others like me matter to them.

“Things are worse (in the UK) than I expected. I knew that I knew there were some issues for transgender and non-binary people here, but I didn’t expect them to be this difficult. Currently over a quarter of the world’s population lives somewhere that has meaningful legal recognition for non-binary people.”

While the impact of their case remains uncertain, the legal loophole they fell through may not be open for long. In January, equalities minister Kemi Badenoch said she would close the fast-track route to gender recognition for trans and non-binary people who have had their gender recognised in countries with systems of gender recognition deemed “less rigorous” than the UK.

Castellucci said being an American taking on the British government was daunting, adding: “I do worry to some extent that the fact that I’m making this claim might be used against me when I file for indefinite leave to remain, and eventually citizenship, because I plan to spend the rest of my life living in the UK.

“I guess I still have some belief that the UK is not a place that would be so petty.”

A Government Equality Hub spokesperson said: “The gender recognition process in UK law only allows a change of sex from male to female or vice versa.

“We listened to those who responded to the GRA consultation and have taken steps to modernise the way that individuals can apply for a Gender Recognition Certificate as a result, including reducing the cost and moving the process online.”

“Given the ongoing legal proceedings in this case we won’t be commenting on any further on this individual case.”

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