The Legal Recognition of Non-Binary Identity

By Reva Naidu.

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For International Non-Binary Day 2024, Reva Naidu examines the current legal recognition and protections available to non-binary individuals in the UK. In this article, she explores the challenges these individuals encounter and discusses the urgent need for legislative changes to ensure greater inclusivity.

What is a non-binary gender identity?

The National Centre for Transgender Equality defines a non-binary identity as one that identifies as a gender outside the gender binary, that is, neither man nor women. It is important to delineate the difference between sex and gender in order to evaluate the legal recognition and protection afforded to such individuals.

The World Health Organisation distinguishes between sex and gender:

1. Sex refers to the biological differences between males and females.
2. Gender encompasses a range of factors:
   • Self-expression;
   • Socially-constructed characteristics; and
   • Gender roles and norms.

These gender roles and norms influence how individuals are expected to behave based on their perceived sex.

 Historically, western society has followed a clear, separate gender binary, while certain indigenous cultures do recognise the existence of a third, and sometimes fourth, gender, such as the Native Americans, who refer to such people as ‘two-spirit’. It is important to note this as it provides credibility to the idea that someone may choose to identify out of the gender binary, and that people have done so for centuries. Additionally, countries like Australia, India, and Nepal allow citizens to legally identify as a ‘third’ gender on passports, birth certificates, and certain identification forms. Thus, this identity also deserves legal recognition in the UK.

Are there any UK laws that acknowledge the non-binary identity?

Non-binary genders have no recognition in current UK law. Although the Gender Recognition Act 2004 provides for a person to legally change their gender to the other, it remains subscribed to the binary perspective on gender. Therefore, legally, in the UK, one cannot identify as non-binary.

Even with respect to the Gender Recognition Act 2004, the criteria that one must satisfy in order to legally change their gender are inaccessible to non-binary people, as one must show that they have attempted to live as their gender of presentation for a period of at least two years. This results in the erasure of non-binary identities, as such objective evidence may not be possible to obtain for most non-binary people. Another criterion, requiring applicants to make a statutory declaration that they intend to live and identify as their chosen gender for the rest of their lives, may prove to be a significant hurdle, since many non-binary people may be genderqueer or gender-fluid, ignoring the existence of a flexible gender identification.

Ryan Castellucci’s legal challenge against the Gender Recognition Act 2004 and Gender Recognition Panel demonstrates the failings of the act in the recognition of his identity as non-binary. Due to the Gender Recognition Panel not allowing their acquired gender to be recorded as ‘non-binary’ but as ‘non-specified’, despite such a certificate being issued by the State of California. As a result, Castellucci was unable to regularise their administrative and legal affairs to ensure compliance with the law, especially in their application for a driving license and a biometric residence permit. This legal challenge clearly illustrates the need for legislative change through a legal acknowledgement of the non-binary identity.

How are non-binary people currently protected from discrimination?

The Equality Act 2010 is the primary legislation that protects employees with ‘protected characteristics’ from discrimination in the workplace. Section 4 of the Act states that the following characteristics are protected characteristics:

• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex; and
• sexual orientation.

A recent unanimous decision of the Employment Tribunal has extended the protection of the act to non-binary individuals by extending the protected characteristic of ‘gender reassignment’ to also include them, along with transgender employees in the case of Taylor v Jaguar Land Rover Ltd. This provides hope to non-binary employees, although the definition of gender reassignment may not fit their identity, as Section 7 of the Equality Act 2010 a person has the protected characteristic of gender reassignment if the person is ‘proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex’. It also labels them as ‘transsexual’. Despite the encouraging decision by the Employment Tribunal, the lack of proper recognition within established statute is a hurdle.

Yet, considering a human rights perspective, the Court of Appeal held in R (on the application of Elan-Cane) v Secretary of State for the Home Department that although the concept of gender identity engaged the claimant’s Article 8 Right to Respect for Private Life, the UK Passport Office not allowing them to identify as a ‘unspecified’ gender did not violate this Convention right. The Court also concluded that this did not amount to unlawful discrimination under Article 14 of the European Court of Human Rights. This case, heard as recently as 2024, illuminates the need to establish a positive obligation on states to protect the gender identity of non-binary individuals as a part of their Convention rights, which would be applicable in the UK through the Human Rights Act.

Why must the UK government make an effort to recognise this identity?

Upon consideration of the aim of the Equality Act 2010, which is to ‘reduce socio-economic inequalities’ and ‘increase equality of opportunity’, it is clear that these protections must be clearly offered to non-binary individuals for the act to truly achieve this. The NHS recognises that over one hundred-thousand residents of the UK identify as neither man nor woman, while the 2021 census identified 30,000 such people. The UK Government also acknowledges the recent rise of residents who identify as non-binary. 

Based on the number of UK citizens who have begun identifying outside of the gender binary, it is important for the government to provide them with legal recognition to ensure they are adequately protected under anti-discrimination and human rightslaws able to complete all administrative and legal formalities without disproportionate difficulties due to their gender identity,and not just ‘shoehorned’ into an existing category. The Government must aim to monitor the complex social change in relation to those whose identity is more nuanced than ‘male’ or ‘female’.