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Why this Californian is suing the British government for refusing to legally recognise non-binary people

An American immigrant to the UK says its rigid insistence on the gender binary has trapped them in legal limbo. Io Dodds reports

Thursday 08 June 2023 20:06 BST
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Ryan Castelluci
Ryan Castelluci (Matt Badenoch Photography)

Last summer, Ryan Castellucci was travelling on a train in the UK when a conductor began to walk down the carriage checking people's tickets.

As he went, the conductor addressed each passenger as "sir" or "ma'am", until he got to Castellucci's seat. Then, Castellucci tells The Independent, "he just kind of looked at me and very tentatively went with... 'buddy'?"

It is a neat example of the confusion that tends to afflict British officialdom when confronted with the existence of a non-binary person. Castelluci, a Californian cybersecurity researcher in their late thirties who moved to the UK in 2019, has already changed their US driver's licence, their passport, and their birth certificate to reflect their gender. But now they find themselves in legal limbo due to the UK's official refusal to recognise anything other than male or female.

Numerous British laws require immigrants to match their identity documents in the UK with those in their country of origin. Yet Castellucci alleges that the government body responsible for granting Gender Recognition Certificates (GRCs) – which change a person's legal sex – will not allow them to change it to “non-binary”.

"I had no idea how to even determine my current legal gender in the UK," Castellucci says with a sigh. "Because it doesn't really make sense that I would have one I cannot document, and it also doesn't make sense for me to be one that I never claimed I was."

That is why they are now suing the British government. In submissions to the country's High Court of Justice, their lawyers argue that refusing to issue them a non-binary GRC violates their human rights by treating them differently from a trans man or woman in the same circumstances.

So far they have raised more than £15,900 ($19,705) to help fund their case, as well as chipping in their own money, hoping to set a precedent that could help others in their position.

On Tuesday, Castellucci's lawyers announced that the High Court had granted them permission to bring a judicial review, meaning a judge will now consider whether or not their treatment violates other laws or elements of the UK's complex, uncodified constitution.

"I've spent 20 years working in cybersecurity. Working in this field requires I be considered trustworthy," Castellucci wrote in a press release hailing the decision. "Not committing crimes such as providing false information on official paperwork is an important part of that.

"Being forced to list an inaccurate gender for myself on official paperwork feels like self-betrayal, which is deeply distressing to me. All I'm asking for is a piece of paper allowing me to establish my legal gender in the UK, and to be honest without fear of committing an offense."

‘My gender has not changed. I just stopped pretending’

Castellucci came to London in 2019 on a "global talent" visa, joining their partner who had accepted a job in England. The couple purchased a home and plan to raise a family there, with Castellucci hoping to apply for British citizenship.

Their discomfort with both male and female goes back long before that. "Throughout my life I had discomfort, which I would find ways to explain away as [something] other than gender-related," they say.

"In my mid-twenties, there was something that happened where I had no way to explain what I was feeling as anything other than discomfort with the gender I was pretending to be.

"[That's] the way I prefer to think of it. My gender has not changed, ever. I simply used to pretend to be a different one, because I felt that I had to."

Even when they were pretending, they looked androgynous enough that people would often mistake them for a woman. Those people tended to be horrified and embarrassed by their error, while Castellucci themselves found they "just didn't give a s***".

All of this helped set off a long process of questioning and discussions with other queer people that ultimately led them to begin laser hair removal in January 2020. When Covid lockdowns arrived in the UK, they were able to experiment more freely, leading them to come out on Facebook and begin hormone replacement therapy (HRT). Eventually they underwent surgery to construct a new vagina while preserving their penis – a rare but increasingly requested option that they liken to “taking bits of gender from both the M and the F menu”.

A more prosaic part of transition meant changing their gender markers on their US documents. Castellucci says they were the first person to have a non-binary passport issued by the US embassy in London, after President Joe Biden changed government rules to allow it in 2022.

Their hope was that doing this would force the UK to follow suit. The Gender Recognition Act – a landmark law passed in 2004 in response to government defeats in the European Court of Human Rights – requires GRCs to be granted to anyone who has already changed their official sex or gender in a list of approved jurisdictions, of which California is one.

Castellucci and their lawyers argue that, since the Act does not actually mention male or female, it therefore demands that non-binary genders be honoured. The government disagrees, claiming that UK law only allows a change of sex "from male to female or vice versa".

Except, Castellucci alleges, that is not what has actually happened. Instead, they say the Gender Recognition Panel – an obscure body of lawyers and medical practitioners that considers applications for GRCs – claimed that it could not grant their application "because of the way the computer programme is set up".

The Panel then allegedly offered to give Castellucci a certificate with "not specified" on it, but refused to say what legal effect this would have or whether other institutions would accept it.

"If I just had a GRC that said 'not specified', with nothing saying what that means, is that legally equivalent to 'no comment'?" asks Castellucci. "I don't know, and nobody I show it to is going to know either.

"So it would be a Pyrrhic victory. It's not going to help me for any practical purpose. Now, if I had an opinion from some part of the government that 'not specified' meant something specific, then that would be fine."

Non-binary? Computer says no

This legal impassse is worrisome to Castellucci, because they are genuinely concerned that they could get in trouble with British authorities for the mismatch despite it being no fault of theirs.

For example, last November, they had to undergo a background check for their job, administered by the government with a private company handling the application.

Yet the forms only allowed them to put their gender as male or female, while also warning them that providing false information was a criminal offence. Nobody at the background check company knew what to do about the situation, and when Castellucci manually wrote in "X", the company simply wrote "female".

Although they ultimately passed the check, Castellucci said in their witness statement that the situation "cost me days of anxiety that I would not pass the security check and my professional life would be negatively affected by a legal and administrative failure to allow me to have a specified gender in the UK”.

It is similar to the many interminable battles they have fought with private companies who refused to update their title to a gender neutral one, or change similar data in their systems. Even when they use a gender-neutral title in front of their name, sometimes people will just it without asking in the false belief that it was a typo.

"I would say the novelty and entertainment factor of this wore off very quickly," they say. "Having a background in IT, I have a better understanding than most of what it takes to update systems, and the amount of resistance people have to doing that seems wildly disproportionate."

In the long term Castellucci hopes to help other non-binary people have their genders recognised in the UK. A Parliamentary committee proposed removing gender markers from passports in 2016, but the idea stalled amid an intense anti-trans backlash that is still happening today.

"I see myself as being in a position to fight for what I need, and in many aspects of my life I like to hold the door open for those behind me," they say

What is not clear is whether winning their case would set a precedent for all non-binary people, or just for those who seek a GRC on the basis of having already changed their gender in another country.

Castellucci is hopeful for the former. "It seems to me like it would be a bit absurd if the UK's position became 'well, we will legally recognise non-binary people who are moving here, but we won't recognise non-binary people who are born here'," they say.

In the meantime, they actually prefer the confused but comprehensible approach of the train conductor to the bizarre convolutions of the government and the Panel. Another example came in December, when they were visiting New York City with their partner and accidentally sat somewhere they weren't supposed to.

A security guard approached them and, looking Castellucci square in the eyes, said: "Sir-or-ma'am, you can't sit there." At least it had the benefit of simplicity.

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