by Davina Cooper | Photo: Ben Kanter
Now is an exciting time to be asking the question: do we need an assigned legal gender.
Our recently started research project on gender’s legal future is situated in a swirl of critical and creative approaches to gender and its possible futures – in terms of what gender means, what it does, and how it can (or can’t) be lived. It is also situated in the midst of legal and political debates about gender transitioning. In different countries, amid social movement and activist pressure, governments are deciding how to reform the ways gender status is determined and altered.
Prefigurative law reform provides a way of thinking about how to change statutory law, engaging with current options but from a different place.
Prefiguration is not a term commonly applied to law or to government. It was developed by anarchist, feminist and other left movements as part of an anti-institutional politics, to emphasise the importance of doing and living the changes sought. Rather than channelling political energy into the operations of government – exerting external pressure or pursuing electoral success, prefigurative politics meant acting as if the world sought, or some aspect of it, was already in place.
While its ethos may be a grass-roots one, prefiguration is a helpful term for what Chiara de Cesari calls institutional projects of “anticipatory representation”. Her writing discusses Palestinian arts initiatives, representing a Palestinian state as if it were already present. Others, such as Jacob Mundy and Fiona McConnell, explore the “rehearsing” of hoped-for states (Western Sahara, Tibet) in conditions of exile.
The concept of prefigurative law reform provides a framework for thinking about the anticipatory law options we put on the table. The LSE initiative to crowdsource and develop a new people’s constitution in the UK is one example of this.
A public democratic spirit
Prefigurative law reform projects give voice to a public democratic spirit that refuses to treat legal reform agendas as the preserve of governmental processes, bodies and times-scales alone. More generally, it draws on two distinct understandings of prefiguration. One focuses on transforming the ways of doing progressive change, anchored in the moral and effectual impossibility of separating political goals from the methods deployed. If the goal is to create a more just, egalitarian and non-competitive society, strategies used should also demonstrate these qualities.
Democratic participatory processes are an important part of doing prefigurative law reform, but I want to focus here on a second dimension. This involves living “as if” the life sought-after is already in place. If we want a society without gender or a society with multiple genders, prefigurative politics means living as if this is doable or already there. What is possible and what is already happening are, of course, different options. But both depend on a dimension of prefiguration important to bear in mind.
Living as if things were otherwise has a critical relationship to what is.
Sustaining this critical relationship is vital if prefigurative politics are not to become a sanitary politics, ignoring the inequalities and injustices of the present.
Critical and optimistic
Prefigurative law reform has both critical and optimistic dimensions. It means acting as if current legal options are broader than they seem, while knowing (thinking, believing, worrying?) that they are not. Jurisdictions around the world, including in Britain, are currently immersed in tricky questions about how to regulate gender transitioning processes: should people be able to change their legal gender multiple times; should state law recognise non-binary genders; what age should people be able to legally re-gender themselves and so on.
These questions are important for current policy debate, but our project on gender’s legal future poses a different question: are there good reasons for a jurisdiction, like England and Wales, to retain a system where sex/ gender is legally assigned or declared at birth? (Whether the key terms should be sex or gender; and whether each is assigned, attributed or declared are being fiercely debated currently, and we will discuss them in a subsequent piece).
The future law reform table
If prefiguration is about future ends, we might read status reform as capturing legal dilemmas likely to be on the table in several years. In some predictive way, it may seem to involve a grab at the future, folding it into the present, perhaps to escalate the process of getting there.
But we do not know whether abolishing the sex and gender legally assigned at birth will become a future law reform question as transitioning processes become increasingly liberalised. Certainly, it’s plausible that if legal gender moves gradually to a simple declaration model, with multiple genders legally recognised (beyond male and female), the next logical question becomes why bother to have a system of assigned legal gender at all. This trend seems even more likely in jurisdictions which move towards gender neutral law, where regulatory frameworks pay ever-less attention, at a formal level, to people’s gender status (even as substantive law still reproduces gendered inequalities).
But while a plausible train of events, our project isn’t invested in predicting the future. It is less an impatient attempt to hurry it into place than an engagement with present legal and policy debates through a law reform question that has not yet officially been asked.
Why do so when there are other viable research methods?
Adopting a prefigurative approach has certain strengths. Asking the law reform question not yet on the table is a form of rehearsal, exploring the implications of a particular legal pathway well in advance of any official uptake. While the strengths and weaknesses of a legal pathway are not static (and so what emerges today as important may not be applicable later on), teasing out the issues for more radical reform may inform how governments and social movements think about it.
Prefigurative law reform projects can disturb the settledness of current possibilities. Opening up wider terrain, they may stoke desire for more fundamental change or show why it is a bad idea, posing questions neglected or silenced in mainstream debate.
They are also experimental. Earlier discussion of prefiguration assumed a particular set of “ends” that would get practiced in the present. Today, prefiguration is more commonly approached as creative and open-ended, enacting the present differently to explore what might emerge.
A critical practice
Posing options not on the table provides a reorienting place from which to engage deeply-felt concerns and anxieties. Far from being dismissive, exploring radical law reform options can elicit investments in the status quo. They provoke people to consider whether something, like legal gender status, so often taken for granted, matters; and if it does, why? What is at stake for different people faced with the prospect of a differently imagined legal personhood?
On the subject of gender law reform, progressives in Britain today are deeply divided. The conflict erupting over gender transitioning and wider questions to do with informalising gender are injuring many.
One challenge for prefigurative law reform is whether re-framing the questions posed can unsettle divisions that have entrenched. This isn’t a plea for harmony and consensus. But when a single division emerges and deepens, debate becomes consolidated around taking sides, with other positions becoming harder to think, articulate and be received.
Can discussing the longer-term futures for gender that are hoped for and feared give rise to new alignments and disagreements? And might these complicate current political divisions, making it possible for other views and questions to be discussed?