Diversifying, Abolishing, Equalising Gender… Can the Law Do All Three?

by Davina Cooper | Photo: Ben Kanter

Legal gender status is currently in tremendous upheaval. What once seemed biologically settled facts – two sexes identified at birth – is now subject to a swirl of different politics. Can we change our gender? What is the relationship of gender to sex? How does gender connect to domination and to how society is organised? And what future might we hope for gender – in what it means and how it is lived?

The Future of Legal Gender project explores these questions, focusing on the specific role of law and legal gender status. The question of legal gender status is today the subject of intense political debate and policy discussion in Britain and elsewhere. We aim to contribute to wider debates and law reform processes by exploring:

  • longer-term directions for legal gender (beyond the exigencies and pragmatism of parliamentary and party politics);
  • how to untangle some of the conceptual differences (and stakes) in the conflicting ways that gender is understood;
  • the principles that might contribute to good feminist law-making, such as equality, justice and care;
  • what gender could come to mean and be.

Our first blog post takes up the problem of gender status and traces some different pathways for its reform.

Why reform legal gender status?

The desire and drive to reform how legal gender status operates, so people can legally acquire a change of gender, has come largely from transgender and intersex activists and allies. While different processes for gender transitioning have emerged, today a legal focus in many countries is on easing formal processes and on enabling genders other than male/ female to be legally recognised. But, while this represents a primary focus for reform, other gender politics are also at stake.

Feminist projects have long challenged assumptions about gender, as well as the unequal power tied up with different genders, particularly the societal constraints, violence and exploitation that come from being  designated female at birth or from having a female sexed body (recognising these two may diverge).

In thinking about legal reform, then, we want to think about three primary issues (and the tensions between them): supporting diversity; opposing domination; and countering the expectations that attach to particular gender labels. The rest of this short article explores three legal pathways that might support these aims. They are 1. gender self-determination; 2. undoing inequality; and 3. abolishing legal gender. Does one approach offer the best way forward or can these different responses to the problem of gender be fruitfully combined?

1. Should gender be self-determined?

The call for gender to be self-determined is an important driver of law reform as advocates argue for individual gender identities to be freed from the constraining expectations of birth sex. Within a human rights framework, the ambition for law to reflect people’s own sense of their gender speaks to an understanding of gender identity as “deeply felt internal and individual.”

It suggests gender is something that belongs intimately to a person, a core part of how we understand ourselves. From this perspective, gender is not something liberal society or states should impose given liberalism’s claimed commitment to self-development and people’s right to cultivate the life they choose.

But what is this gender?

An alignment is often drawn between gender as self-understanding (or identity) and gender as externally performed or expressed characteristics (including “physical appearance … mannerisms, speech, behavioural patterns, names and personal references”). It is this alignment and characterisation, with its implication that we can know what particular modes of appearance, identity and ways of being mean in gendered terms that many feminists find troubling.

In different countries, legal frameworks are evolving along self-determination lines. In some places, gender transitioning has been made easier, cheaper and swifter, not least because the need for medical expertise and surgery have been lessened or removed. Several countries, such as Ireland, have also moved towards a simple self-declaration model. In Germany, Australia and elsewhere, reforms have been introduced to establish additional legal categories or “boxes”, particularly for registration purposes, for people who identify as neither male nor female.

We aim to explore this law pathway, in relation to reforms currently being proposed and introduced in different countries, but also as a longer-term legal arc, to address the challenges and questions it poses.

  • If the genders recognised by states extend beyond male and female, should people have to select from a predetermined list, or should the law recognise people’s own self-identified gender (including potentially new genders)?
  • Do different gender categories need to be socially intelligible; or is it enough that someone says: this is me? Might some gender options be disqualified as ones the state won’t recognise because they are deemed too harmful – even toxic?
  • When should declaration of one’s gender take place? If it is not to be imposed by parents or state bodies at birth, should it take place on reaching adulthood or can it be undertaken at any (fixed or unfixed) age?
  • How easy should it be for someone to change their legal gender post-declaration; and through what means?

Treating gender status as rightfully subject to self-determination seems to support gender diversity – with its flourishing of multiple gender expressions. Its impact on gender inequality, however, seems less clear.

On the one hand, it foregrounds the importance of different gender identities and expressions having legal recognition. This matters for people whose gender status is constantly challenged with practical harmful consequences. It also matters for a politics that wants to move away from binary gender, including by prefiguring a different conception of what gender could mean and entail.

However, self-declaration faces challenges from those who question the benign character of gender; the benign character of state recognition; and the presumption that gender is something intimate and personal (rather than public and political). One difficulty with a gender diversity model is that, in its celebration and affirmation of all genders, it can shy away from actually identifying what gender is.

Gender diversity affirms gender as a form of identity, appearance and expression, but what makes these aspects of life gendered? Is it their particular relationship to male/ female, masculine/ feminine – and if so, what makes gender worth affirming? Can gender become something else? Scepticism that it has, at least for now, drives a second law reform pathway.

2. Undoing inequality, or what does it mean for gender to be relational?

The depiction of gender as an intimate and important aspect of personhood confronts a law reform pathway that understands gender as far less benign; and far less an expression of our identity.

While it is tempting to identify this as a feminist politics confronting a transgender or queer one, divisions are far less clear-cut, and the flourishing of trans and queer forms of feminism are important to recognise.

At the same time, many feminists continue to articulate a paradigm of gender organised predominantly around relations of domination, exploitation and inequality between men and women. From this perspective, views then divide. Some identify gender (or sex) as statuses that could outlive the currently unequal ways in which they are governed and inhabited. Today, women have less power and fewer resources than men as a class, but their gender is not defined, or at least not exclusively defined, by this inequality (including because other inequalities such as economic class and race may be more significant).

Other perspectives treat gender as constitutively defined by domination and inequality. For them, there are no benign genders and no possibility for them. When gender is viewed as a key feature (and product) of a patriarchal society, the only outcome worth securing is its abolition or overthrow.

The notion that gender can be chosen, and that different genders have (potentially) equal value, misses a fundamental aspect of gender’s character, which is that it is relational.

Gender is not like clothing or a cup of tea, things we can have apart from others. In this account, gender is quintessentially about how we exist unequally in the world in and through our relation to others. Gender names this relationship.

If gender is about inequality – between men and women and, we might add, other gender statuses also – what, if anything, can law do to assist? Some feminists argue law can protect, including through women-only facilities (toilets, refuges, hostels, swimming spaces). Others argue a politics of protection itself reinforces inequalities of power and risk, treating women as vulnerable and at danger.

Beyond supporting protective facilities, law can prohibit (its own and others’) sexist or discriminatory practices; and it can support affirmative action. Reforms that make a difference, importantly,  also don’t just directly target gender status. They may also target punitive immigration, welfare or labour policies as gender’s equality (or its abolition) seems to require institutional changes that undo or counteract the complex gendered character of wider social life.

One question our project poses is whether law reform movements focused on challenging gender as domination can combine with law reform movements in favour of gender self-declaration. Can law support gender’s diversification (beyond male/ female), while also supporting greater social equality and the undoing of women’s subordination?

This has become a site of rapidly escalating tension in Britain and elsewhere.

Evidencing inequality

For some feminists, building support for the dismantling of gender disparities depends on showing they exist. This relies not only on gender being a stable category but on people identifying their gender (although not necessarily subscribing to a gender identity) in ways that align with their perceived gender status. Otherwise, critics argue, men can identify as women and skew statistics on sexual violence, pay, and domestic care work so that gender inequality appears to have vanished.

Kathleen Stock makes this point in the Economist, “The category “female” is important for understanding the particular challenges its members face. These include a heightened vulnerability to rape, sexual assault, voyeurism and exhibitionism; to sexual harassment; to domestic violence; to certain cancers; to anorexia and self-harm; and so on. If self-declared trans women are included in statistics, understanding will be hampered”.

The problem of skewed statistics is one that goes far beyond gender self-determination. Statistics about women’s pay, labour, life expectancy or housing, when expressed as generic categories of  “femaleness”, won’t tell us much about the experience of particular groups of women in conditions where inequalities of ethnicity, class, disability, and nationality, among others, create huge discrepancies. The composite woman is more likely to match the experience of some women than others.

Making the category of woman, man (or any other gender) looser and more permeable, through self-declaration, generates similar challenges. It suggests we need new granulated analyses to understand what is going on. We also need granulated analyses to understand how this might be changing as experiences of subordination or dispossession evolve in ways that lead gender to play a different role (and different kinds of gender to play a role).

Benefit-raiding

A second concern is that people will claim statuses (such as being female, but perhaps not only that) for their benefits: affirmative action; entry into single-gender facilities.

Worries about “benefit-raiding” are not particular to gender or to legal self-declaration. They apply to any context where benefits are contingent on group membership (as parental declarations of religion in order for their children to enter popular religious schools demonstrate). While the significance of benefit-raiding is unclear (and varies by context), it also highlights the limits of a group-proportionate approach to opportunities, access and provision with its goal of each group having an equivalent share.

Take women-only parliamentary shortlists – the subject of recent British controversy over who counts as a woman. Aside from the question of whether women MPs better represent women in some way, what also gets pushed to one side in these debates is whether there are other less scarce ways of distributing goods – including of political participation and power.

Gender as self-declaration and gender as inequality clearly diverge when it comes to law reform programmes. In a political climate where the conflict between them has grown particularly harsh, their polarisation is readily apparent.

But is there common ground?

One area of commonality may be in their shared objection to the idea that a gender (or sex) assigned at birth should determine how a life is to be lived. A “self-declaration approach” focuses on an individual’s right to identify the gender that fits them best – regardless of what was assigned. A “gender as inequality approach” argues that gender (or sex) should have no power over how a person lives. Both seek to unsettle conservative notions that (assigned) sex is destiny.

They also converge in the claim that gender should not structure social life – that it should not determine power, resources or social systems. To the extent self-declaration advocates treat gender as signalling ways of being or appearing in the world, they may be arguing for a freedom of expression that those concerned with gender as inequality would define in other, non-gendered terms. Thus, one question these two pathways invoke – thinking towards the future – is about their respective investment in gender. What is gained or lost when diverse styles of living, which could be expressed in a multitude of ways, are framed in gendered terms?

3. Abolishing legal gender – how much difference does it make?

The third pathway we are interested in, and the one that orients this project, is the abolition of legal gender status. This is a pathway no country has yet adopted, although some scholars and activists have suggested it, including Canada’s Gender-Free I.D. Coalition. Many countries are also moving in this direction as “gender neutral” legislation reduces the significance of people’s gender (at least formally) across a wide range of fields. In these countries, where gender no longer explicitly affects how the law treats us, the standard expectation that we repeatedly disclose our gender (which is also a legal gender) appears increasingly outdated unless its purpose is a remedial one given ongoing gender inequalities.

Abolishing gender as a legal status means the state would not assign gender. But it also means something more. Our project will explore the questions that arise in researching how far it might be extended.

  • When should state law recognise people’s own self-identified genders and when should it be genderless?
  • Should organisations be able to use gender as a way of identifying membership and users? And if conflicts arise between an organisation and member (or user) regarding their gender, how should this be resolved? Where should decision-making authority lie? And what is the role of the state, if any, in mediating disputes or regulating the power to decide?
  • Should governments continue to use gender as a category for monitoring, affirmative action, and other areas of public policy and so recognise the gender (male and female but also others) that individuals identify themselves as having? Certainly, the elimination of legal gender status does not mean gender cannot function as a legally intelligible category in particular contexts, just as other social characteristics currently do, including ethnicity, sexuality or religion, which in Britain also do not define people legally.
  • How should law deal with “differently patterned” human bodies – what some would simply call sex? As with any other legal approach that makes it possible for genders to change, new ways need to be found (and are being found) to calibrate and assess risk, longevity and strength (for instance in sports, medicine, and insurance) in ways that do not depend on gender, which is becoming an increasingly unreliable proxy.

If the state no longer “certified” particular genders as belonging to particular bodies, we might expect gender diversity and undoing normative expectations associated with gender to be enhanced.

But would “decertification” have any impact on wider systems of gender?

Feminists have long argued that gender inequalities risk being masked and reinforced by the absence of formal legal status. The experiences of other social statuses, such as religion and class, demonstrate that inequalities can endure without being legally written on the body. Subordinate or minor statuses do not seem to be undone by the fact individuals, from a liberal perspective, can “freely” enter or leave them. At the same time, religious and class inequalities do not appear masked or less visible because they do not shape individuals’ formal legal status.

One question this raises, which we will explore is: how important is legal gender when it comes to gender’s social future (and futures)?

There is clearly a strong call currently for law to recognise social gender. But is law a classificatory system that should simply mirror social life (in all its tensions and contradictions)? Or when it comes to gender, should law (at least partially) withdraw so gender’s ongoing life is a social rather than official one? Can law step back while still using gender to undo ongoing injustices? These are some of the issues we want to explore over the next three years.

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