November 2019
New blog post by Han Newman and Liz Peele: Moving Beyond the binary? The enduring power of biological sex in our survey responses
What if the state no longer sexed us? The implications of reforming legal gender status. King’s College London. 8 November 2019. Please register through Eventbrite. Open to all. Part of the ESRC Festival of Social Science (2-9 November 2019).
Should state law continue to register our sex and so enrol us within a gendered legal structure that lasts throughout our life? This is the question we’re discussing on the 8 November 2019. Our roundtable discussion draws on research carried out by the ESRC funded project, The Future of Legal Gender (FLaG, 2018-21). This project critically explores the proposal to “decertify” sex and gender so that the state no longer formally assigns and recognises people according to this status.
(Note: Since use of the terms sex and gender have generated a lot of debate and disagreement and it’s cumbersome to keep saying sex and gender, we use gender here to emphasise the social character of this categorisation – particularly as we are interested in how state law treats people through its use of legally gendered terms, such as male/ female, mother/ father and so on.)
The proposal to decertify gender is not yet on the law reform table in Britain, but it is one moving ever closer, and gaining serious attention overseas. It would mean that babies born in Britain would grow up without a legal gender – although not necessarily without a social gender. State law, then, would treat gender more like sexuality. While anti-discrimination law protects people from unjust treatment because of their sexuality, nobody is legally lesbian, bisexual, heterosexual or anything else. This means people can, and do, change their sexual orientation without involving the state, and people can also live a sexual life outside of these categories if they choose.
Why explore the decertification of sex?
Policymakers, NGOs, union officials and other members of the public we have interviewed identify different benefits and risks to decertifying gender. On the plus side, it would remove state support for a binary grid that harms people who don’t comfortably fit. More generally, it might help challenge the assumption that gender belongs to individuals (rather than being a condition of society), and that it is a belonging that matters.
But while gender shouldn’t matter (and perhaps should not exist), a long list of harms, including violence, cultural stereotyping, unequal work opportunities, and poverty suggest gender still makes a difference. One fear is that removing gender (or, as some would prefer to say, sex) from legal personhood hinders state law’s ability to tackle gender-based wrongs.
This is a core concern for us as a feminist research project.
Those we spoke with, in conducting our research, identified four areas that would be hardest hit by no longer having a legal gender:
- single-sex groups, services and activities;
- consistent and reliable gender-based statistical data;
- positive action to counter gender discrimination and inequality, such as women-only parliamentary shortlists;
- protection for people with precarious or contested genders who benefit from having a formal status.
These concerns are not unexpected. The challenge is whether they can be addressed without relying on people having a legal gender. Different suggestions have been made here. For instance, privacy, risk assessment, bodily capacities and organisational autonomy have all been suggested as strategies that can do the work currently being done by gender categories. Yet, these proposed solutions also have limitations and problems as our roundtable will discuss.
For instance:
- Does designing spaces for privacy (to avoid separate men and women’s toilets and changing rooms) reinforce culturally specific norms of bodily embarrassment and the need to “wall strangers out” or does it give people much needed seclusion?
- Does risk assessment suggest certain bodies are inherently riskier than others and that danger can be avoided by detection before-the-fact or is it a vital way of creating manageable safe spaces?
- Does focusing on physical capabilities (rather than using sex as a proxy) so people can be fairly matched in sports open up challenging questions about ‘level playing fields’ or turn humans into a random collection of body parts?
- And does greater organisational autonomy, allowing groups to make their own decisions about gender-based membership categories and who falls within them (if state law no longer played this role), support a flourishing non-state sector or give organisations too much freedom to discriminate?
Tracing these dilemmas, other dimensions of law and social life also come to the fore. And so, what starts as a narrow question about legal personhood stretches outwards to a far more expansive set of concerns – about poverty, racism, and criminalisation, but also about individual comfort and collective expression. Conventional law reform processes typically focus inwards, defining and excluding areas of activity on the grounds they fall outside the remit of reform. Engaging in a speculative law reform project makes it possible to trace the ties and resonances that weave gendered legal status into a far wider social tapestry.
We look forward to exploring these ideas and themes further with participants attending our roundtable event.
