What can legal consciousness studies and discursive psychology reveal about talk on legal gender?


by Elizabeth Peel | Photo:  Etienne (Flickr)
This blog post discusses what legal gender status means for different members of the public. I combine insights from legal consciousness studies with discursive psychology – applying both to interview data collected during the ESRC Future of Legal Gender project between June 2019 and April 2020. [i] The blog post builds on previous work on peoples’ perspectives on legal gender reform.

In the UK, legal gender is enacted through the Birth and Deaths Registration Act 1953 and crystallised via a birth certification process which is binary (sex is registered as either female or male), static, and life-long (unless it is formally changed through obtaining a gender recognition certificate). What do people think about this way of doing things? And what are some of the different ways people talk about legal gender?

When focusing on the impact of legal gender on everyday lives, I decided to apply insights from legal consciousness studies.[1] Patricia Ewick and Susan Silbey (1998) generated ‘before’, ‘with’, and ‘against’ the law types of legal consciousness based on interviews with people in New Jersey, USA. These categories of legal consciousness refer to different ways that people understand legal things.

‘Before the law’ meant that law was distinct from society, both grand and uninfluenceable. Ewick and Silbey’s ‘with the law’ legal consciousness sees law as more of a game which isn’t totally separate from everyday life but largely operates in settings such as courtrooms. ‘Against the law’ sees legality as ‘dangerous to invoke’ (p.192) or to be avoided. But, as Rosie Harding (2011) writes, this form of legal consciousness ‘includes numerous methods of resisting legal power: resistance to both law’s power and law’s terrain, as well as to law’s scope’ (p.20).

Whilst Ewick and Silbey’s insights were helpful, we took a different approach to explore legal gender. Ewick and Silbey didn’t ask people directly about law, they asked about ‘ordinary, daily events’ (p. 252). Our research, however, asked people what they thought about how the law currently is, how it impacts their understanding of gender, and whether it would make a difference if the UK no longer certified gender at birth. Ewick and Silbey also ‘clean[ed] up’ (p. 259) their interview transcripts. The theorists got rid of the messy aspects of how people talk because they saw speech as a window into what people ‘believe’ (meaning an individual’s thoughts and cognitions). Discursive psychology, by contrast, views speech as a form of social action worth studying too, so we decided it was important to explore how these interviewees talked, as well as what they said.[2]

In our analysis, ‘law’ and ‘gender’ are fused together, recognising that ‘there are many normative orders of various descriptions that are not attached to the state but which nevertheless are “legal”’ (Harding, 2011: 30). Gender, in all its forms, is one such normative order. In our interviewees’ discussion of everyday life and legal gender there were ‘before’, ‘with’, and ‘against’ legal gender discourses – as we outline below.

Before legal gender positioned gender as capturing and communicating immutable “facts” about bodies. ‘Before gender’ was against changing how law currently registers sex, and sex rather than gender was the subject of their ‘before the law’ approach. Chloe[3] provides a good example.

Chloe: I think sex really needs protecting in law. Gender is this sort of amorphous evolving thing I have very little interest in or to do with, whereas, sex is a biological reality and my life has, as has everybody’s life, been totally affected by this biological reality. The fact is that females, in this patriarchal culture are systematically devalued and underrepresented in all sorts of contexts. I do need particular legal protection as female.

EP:  It would be bad for women if the law didn’t recognise sex in the way that it currently does from birth or—

Chloe: Obviously, I mean, that’s why the protection is there, to protect women. We are in a situation at the moment where there is a pushback. We have far right people in power […] Women’s rights are not something that is a high priority to them. And so that’s kind of the context within which I think of all my sisters who have struggled throughout the past 100 years to get us these protections.

There is a distinction between the ‘biological reality’ of sex and the ‘amorphous evolving thing’ that is gender, which is swiftly bracketed as of ‘little interest’ in any sense. There’s no recognition of the ways in which laws have created, perpetuated, or failed to redress ‘this patriarchal culture’, rather a conceptualisation of law as offering ‘particular legal protection as a female’. There are other discursive devices too, which together function to create a persuasive account that presents the view that biological sex sits before law as self-evident. First, words or phrases hearably going to extremes (‘everybody’s life been totally affected’, and ‘all my sisters who have struggled throughout the past 100 years’) manage Chloe’s investment in the account by positioning an alternative feminist view as inconceivable and inappropriate. Second, her footing shifts and use of ‘we’ (‘We are in a situation…’, ‘We have far right people…’) function to position the account as believable and merely reporting “the facts” of the matter.

With legal gender accounts gave a more flexible framing of gender, existing as a legal entity but not positively or negatively influencing everyday life. Legal gender was associated with documents and forms – ‘only when you have to tick those boxes’ (Aida). ‘With gender’ was ambivalent to change. Davey provides a clear illustration:

My legal gender, I think it- I don’t think it does [affect my life], actually. Not in a negative way or a positive way, just- it’s just something that I quote when I am asked what my gender is, basically.

Davey’s account is delivered with some disfluency (i.e., self-repair ‘I think it-‘) and constructs the importance of legal gender as modest, and ‘just’ made significant when requested. There is a lack of specificness in this account, Davey doesn’t indicate who or which bodies are ‘ask[ing]’ for his gender. Again, this works to generally downplay the effect it has on his everyday life.

Against legal gender
was critical of the current gendered order represented through cisnormative and binary operations of legal gender. ‘Against gender’ was pro-changing how law currently registers sex. Juan offers an example of personal difficulty with the current system:

I have mentioned the annoyance that I feel at getting labelled with gendered honorifics that don’t match my understanding of myself. That is just through every time you have to fill in a form where gender says male or female. And for example, I don’t know if that’s a legal issue but equal opportunities forms in the UK rarely have space for any other option and that’s a mandatory thing. It’s generally frustrating I think “Would it make my life easier in the sense of not having to deal with those minor annoyances, to have legal recognition as a non-binary person? Hell, yeah”.

In this account, Juan reiterates their ‘annoyance’ at the available titles not being reflective of their sense of self and this being imposed (‘getting labelled’). They then both minimise (‘just’) and formulate in an extreme way (‘every time’) the prevalence of binary gender on ‘forms’, and the compulsory nature of the existing framework (‘mandatory’). Juan produces the question of having a different regulatory framework as being prompted by the endemic irritation (‘generally frustrating’) of the current one, and the construction of their talk in a question-and-answer format works discursively in two ways. First, this structure demonstrates through its form that these issues are problems that can be solved – the question is answered. Second, the ‘hell yeah’ in response to life being easier is unequivocal, enthusiastic and displays emotion communicating the importance of change.

Before/with/against legal gender discourses bring to the forefront three positions on decertification (removing female or male as formal legal statuses). ‘Before’ consciousness is anti-decertification, largely because it would be problematic for natal females. ‘With’ is neither for nor against decertification but creates space where decertification could occur though its impact would be limited. ‘Against’ is pro-decertification, to continue certifying gender is considered harmful for groups marginalised by a legal gender system enacted through binary sex.

Talk about how gender could be regulated differently was mostly created by the questions asked (e.g., How do you think your legal gender status impacts your everyday experiences if at all?). Our focus on how these forms of legal consciousness were produced is an invitation to take seriously the construction of talk about socio-legal topics.


[i] 44 interviews (mean age 42.7 years, range 20-77) were conducted with cisgender women (n=27) and men (n=8) and trans and gender diverse people (n=9). 14 of the interviewees were parents of dependent children.

[1] Ewick, P. & Silbey, S.S. (1998) The Common Place of Law: Stories of resistance to legal authority. Chicago University Press.  Harding, R. (2011) Regulating Sexuality: Legal consciousness in lesbian and gay lives. London: Routledge.

[2] Edwards, D. & Potter, J. (1992) Discursive Psychology. London: Routledge. Wiggins, S. (2016) Discursive Psychology: Theory, method and applications. London: Sage.

[3] All participant names are pseudonyms.