In February, the Court of Appeal rejected a claim seeking to obtain legal recognition for non-binary gender identity in the UK. However, non-binary employees can still benefit from protections from discrimination at work, so employers should not change their approach in light of this decision.
What did the case involve?
As background:
- UK law currently recognises officially two genders: male and female. This means everyone needs to have either and M or F marker on official documents, like passports and driver’s licences.
- The process to change legal gender in the UK is enacted in the Gender Recognition Act 2004. This empowers the Gender Recognition Panel to issue a gender recognition certificate to an applicant seeking to change legal gender.
- One of the routes to obtaining a gender recognition certificate is to rely on a legal gender change in another, recognised, country.
The individual behind the case was a non-binary US national who had relocated to the UK. In accordance with Californian law at the time, their US identity documents had a gender marker “X”.
Many countries from all corners of the globe recognise non-binary, gender fluid, or third gender identities on legal identity documents, including India, Australia, Canada, Argentina and Denmark.
They applied for a gender recognition certificate to change their UK documents to also have an “X” gender marker. This was rejected by the Gender Recognition Panel, who said they could only issue a gender recognition certificate that had a binary gender marker (i.e. changing from M to F, or vice versa).
That decision was judicially reviewed (the High Court rejected this, agreeing with the Gender Recognition Panel) and then appealed to the Court of Appeal.
The Court of Appeal confirmed that the Gender Recognition Panel was correct; they did not have the power to issue a gender recognition certificate with an “X” marker. The Court of Appeal found it was for Parliament, and not the courts, to give official recognition of non-binary identities on legal identity documents.
You can read the full decision in R (Castellucci) v Gender Recognition Panel and another here.
What does this mean for employers?
In practice, this decision means nothing changes for employers in the UK.
It is key for employers to remember that the protected characteristic of ‘gender reassignment’ in the Equality Act 2010 can extend to non-binary and gender fluid identities, granting protections from direct and indirect discrimination, harassment, and victimisation.
The position was established in Taylor v Jaguar Land Rover Ltd in 2020, where an employee was awarded £180,000 as compensation for harassment and direct discrimination on the basis of gender reassignment and sexual orientation, as well as victimisation.
