The discussion below draws on questions we have been asked by gender critical and other sex-based rights feminists. The responses provided come from research carried out between 2018-2022 in England & Wales. References are not provided in the text but there is a full list of our published work at the end. Our analysis of decertification is specific to the current British context and is not intended to be necessarily applicable to other jurisdictions with quite different legal and social ways of organising gender.
More information is provided in our Final Report, Abolishing legal sex status: The challenge and consequences of gender related law reform. Future of Legal Gender Project.
Why do people think decertification might be a good idea? Is its main benefit to help non-binary / trans people?
Decertification would dismantle a system which places people in legal sex and gender categories from birth, based on observation of a baby’s genitals. Dismantling this system is seen as beneficial for people whose identity or way of living does not fit it. While this may help some trans and nonbinary people, others can benefit too. It should be noted that not all trans organisations or activists advocate for decertification.
Dismantling a system of compulsory legal sex can help people who want to live without a gender identity by recognising them in equality law, amending other laws which assume two ‘opposite’ sexes and genders, and by removing the requirement that people identify as women or men for documentary purposes. Decertification also helps people with variations in sexual development – identified by a binary system as ‘ambiguous genitalia’ – by removing legal allocation to a sex category at birth. This may help to reduce pressure on parents to agree to medically unnecessary surgery on infants to correct non-normative genital appearance.
Advocates also see decertification as having other benefits. Decertification helps to counter sex and gender hierarchies since people are not placed legally within a dominant or subordinate sex and gender. This could benefit everyone who objects to expectations of gender conformity (or of being recognisable as either women or men), when it comes to dress, appearance, and ways of behaving in school and work. Decertification could also benefit lesbian and gay people by countering an official framework which allows people to be clearly divided by their sex and gender. This could help in contexts where discrimination still takes place, for instance in relation to adoption.
The current system of certification of sex and gender suggests that sex based on genital-observation is an important feature of a person that should comprise part of their legal personhood, with wide-ranging social consequences. Certification, however, does not only allocate people to sex and gender categories. It also contributes to the production of these categories and to people’s socialisation as members of these categories from birth. In conditions of decertification, schools and other institutions might become more careful about how they identify children and avoid making explicit gendered assumptions and expectations, for instance, that boys are physically aggressive or that girls do not like maths.
Decertification would not abolish or end gender-based socialisation or gender inequality. However, it removes one institutionalised support for it. Advocates also see it, positively, as removing the power and authority of the state and law to determine what people are, and to maintain highly regulated procedures for gender transitioning (that control who can transition, how many times people can transition, at what age, through what process, with what evidence etc).
Does decertification mean ignoring sex differences?
Embodiment is important and shapes how we experience life – including through social structures of disability, race, age, and gender. These social structures, in turn, also shape what counts as sex, race, age, and disability. in terms of what these terms mean, what they include and exclude, and how the elements that make them up go together. Sex may seem a straight-forward idea. However, at the current moment in Britain there is no consensus about what it is or means – is it about biology or something broader, what counts as biological sex, and what happens when hormones, chromosomes, genitals, and other body parts do not align in conventionally expected ways? Some sex-based rights feminists focus today on reproductive dispositions to distinguish between two primary biological pathways: female and male. Yet, while bodies may seem to cluster around these two pathways, albeit with outliers, the social life of gender is much more complex and broader. Given this, some interviewees queried why law, in Britain, today, needed to define people by their reproductive disposition.
Decertification does not mean ignoring bodies and their needs (see below). In terms of equality law protections, it is also worth noting that the Equality Act 2010 includes Pregnancy and Maternity as a separate ground of discrimination.
Would decertification lead to the erasure of women as a concept and or/category?
No, decertification would just mean that who comes within the category of women or men is not legally fixed at birth. The law could still use these categories where necessary. They might be based on self-identification. They could also be determined differently in different legal and policy contexts. Different laws currently make use of the same term (for instance, religion or disability) in different ways. ‘Woman’ and ‘man’ refer to physical entities, but they are also social and legal concepts. They are, therefore, subject to diverging opinions in how they are understood; and subject to change in the prevailing ways that they are understood over time.
Would it mean that women would become known as menstruators instead?
No. The aim is not to refer to women through proxy terms, such as menstruators or ovulators. What is important is that surveys, data collection and intake registration processes, such as in hospitals, ask more precise questions to be able to gather the information they need. Currently, people can be legally women but not menstruate – for a wide array of reasons. Other people can menstruate and not be legally women. When it is important to know if someone has a menstrual cycle, our research suggests that this should be asked directly rather than assumed from a question about whether someone is a woman (of a certain age). Some people may not understand the term, “menstruation”, but asking about it can also have an educative function. It helps people to have a better understanding of their bodies and destigmatises the functions associated with bodies, including those relating to ovulation and menstruation.
Does decertification mean that we lose statistics and data on health, crime, and other metrics that help advance social equality?
No. Decertification does not mean the loss of statistics. These are produced for other inequalities (e.g., ethnicity and religion) where people are not allocated by the state to a legal category. Currently, even data collection about ‘sex’ generally does not ask people to provide proof of their legal status and so in practical terms is based on self-assessment. It is worth noting that crime data currently is collected inconsistently and not based on legal status.
For categories which rely on self-identification, it is recognised that respondents will understand these categories in different ways. For instance, the category of “Jewish” appears under religion in the census, many surveys, and hospital admission. Yet many Jewish people are secular or atheist. Some of them will tick yes to Jewish as a religious category; other won’t. Some people identify as Jewish in terms of their religion but not as their ethnicity or culture. Similar ambiguities and variation can be found with other categories. For instance, some people with diabetes may describe themselves as disabled while others do not.
Communicating statistical information without any discussion about the categories, and the complicated and diverse ways in which they are understood by those responding, limits what statistical data can tell us. At the same time, statisticians recognise that variation in respondents’ understanding (and what they tick yes to) routinely occurs. But if discrepancies are limited, large scale data can still provide useful information. When the discrepancies are more significant, this may indicate a need to re-phrase the question asked. Survey and questionnaires, however, also need to be acceptable to those being asked to fill them in. This becomes challenging when a category becomes politicised and people feel excluded, marginalised, or degraded by the wording of a question. As recent censuses in England & Wales and Scotland reveal, how to ask the ‘sex’ question (and the guidance given to completing it) to achieve buy-in from different constituencies is currently very difficult. Currently conventions about how to use the terms sex and gender have fractured. Going forward, the terms are likely to evolve and be understood in diverse ways. While a new prevailing understanding is likely to emerge, it is not yet clear what this will be.
Today, when it comes to medical or scientific use, our research suggests far more granulated and specific information might be helpful rather than simply asking: what is your sex or gender? In current conditions, these terms are understood in divergent ways. This means they are not precise or standardised enough for the different bodies and bodily needs that people have. In relation to crime, if there was a sudden spike in data on women’s violence post-decertification, this would be important to understand. In our research, we heard suggestions that men would claim to be women and so distort statistics on women’s violence. Whether or not this would happen (and to what extent), this is a further reason why decertification needs to be part of a wider set of measures to tackle the gendered causes of violence.
How would decertification help to end both the exploitation of women and violence against women and girls?
Decertification alone will not end exploitation and violence. Removing legal sex, however, may help to counter the institutionalised discrimination towards people who live as agender, nonbinary and genderqueer, or are perceived to have transitioned. It is hoped that this would reduce the violence, stigma, and degrading treatment experienced by people who live outside of current binary norms. Decertification removes legal divisions between cis and trans and between sexes/ genders that are legally recognised and those that are not. Removing these divisions emphasises the social character of exploitation and violence, and reconnects the harms experienced by women and girls to other gender-based harms.
The ambition is that ending a system which labels babies from birth by sex would contribute to lesseningthe gendered socialisation that starts from birth (and perhaps even before birth). This socialisation feeds male aggression and violence, and the, still culturally dominant, assumption that care, nurturing, and softness are something girls and women do naturally (and that boys and men can and/or should not). But it is also important not to overestimate what decertification can do. The context of its introduction matters – shaping whether decertification is part of a neoliberal project of state withdrawal of responsibility for gendered inequalities or part of something more progressive that seeks to counter the hierarchical ways that gender relations organise social life. An important concern here also is to ensure that lessening gender-based exploitation does not coincide with greater exploitation on other grounds (e.g., nationality or ethnicity).
If legal sex were abolished, would women lose sex-based legal protection?
Many “protected characteristics” in the Equality Act (e.g., sexual orientation, race) do not depend on legal status. One option is to replace the separate equality grounds of sex and gender reassignment with an umbrella equality ground of gender that includes sexed embodiment, social roles, identity and expression, stereotyped expectations, gender-nonconformity, and transitioning. Women could then be protected against different forms of gender-based discrimination or disadvantage, including when it relates to sexed embodiment (e.g., menstruation, menopause, and gendered height, weight, and body-shape norms).
When it comes to countering discrimination or advancing positive forms of action, these often relate to social experiences, such as childcare or elder-care responsibilities, or lower pay. These may have historical or personal relationships to biology, but do not require a particular form of sexed embodiment. The same is true for other gendered expectations; for instance, that women act in a particular way in terms of how they use their body (including voice, speaking style, bodily movements) and how they look (in terms of dress, body hair, or grooming). It does not seem fruitful to disentangle physical and social qualities into separate grounds (e.g., sex and gender identity). Discrimination may also involve imagined or manifested bodily attributes – a cis-identified woman who gets turned down for a job because she is assumed to be transgender; or a transgender woman who is turned down because it is assumed she might get pregnant. Gathering different manifestations of gendered inequality within an umbrella category does not assume conflicts won’t exist. As with other equality grounds (e.g., religion and race), there can be divisions and competing interests between people drawing on the same “protected characteristic” in equality law.
What criteria could be used to regulate access to spaces, services, and benefits rather than certified legal sex? What would be the benefit?
Spaces, services, and benefits can be allocated according to need, benefit, and self-identification. Needs may relate to experiences of oppression, trauma, and bodily capacities. Focusing on benefit means services are available to those who self-identify as benefiting from them. For instance, an interviewee described a municipal initiative offering help to people returning to work after a long break. While this initiative was a response to women’s experience of parental leave on having a child, it was not explicitly described as being for women. Take-up was mainly by women, but some others also used the service. Some women’s services told us they were open to all self-identified women who could benefit from the services they offered – thus ‘women’s services’ describes the kind of service rather than restricting admission to those deemed to be ‘proper’ women. They also described careful risk assessments of individuals and of the spaces created (e.g., therapeutic environments) to avoid or try to minimise disruption and harm rather than assuming that certain kinds of people would be too risky to include.
The challenges that decertification poses also prompts thinking about other ways that activities, such as sports, could be organised. Women’s sports are important. But elite and competitive sports have become intensely focused on who comes within the category of women for specific sports. This has been criticised as stigmatising or excluding trans women, people who identify outside of a binary sex and gender structure, and for its scrutiny of women’s bodies, particularly those deemed not to fit gendered norms of what women’s bodies should be like (because of testosterone levels, muscles, size etc), norms which have also been criticised as being racialised. Uncertainty about who should be admitted to women’s competitive sports may increase if decertification took place. This gives impetus to exploring other ways of creating fairer competition, while recognising the different bodily and geopolitical features that create unfair advantage. One approach is that used by the paralympic games to group people according to relevant functional capacities. Another is to create sports which test a broader mix of capabilities and so are not seen to give either men or women an unfair advantage.
Does decertification mean that the law doesn’t label people? How would that help to fix inequalities between men and women?
Decertification affects the source of knowledge that law has. Abolishing legal registration of sex would mean that determining a person’s sex or gender does not rest on a formality, such as birth registration or a GRC. However, depending on the kind of decertification introduced, law might still recognise people’s sex and gender. Some may worry this would revert to common-sense notions of sex and gender that struggle to recognise plurality or transitioning. Alternatively, it could also be based on self-identification.
If self-identification were to become the new presumption post-decertification, this might need legal confirmation (such as in a statute). Decertification, by itself, does not determine how sex and gender become subsequently understood in law. Legislative reform also prompts consideration of whether state law should recognise self-identified membership in all gender categories that meet its criteria for being a gender category (akin to religion in equality law) or, instead, establishes a list of categories that it recognises (e.g., women, men, nonbinary, agender). Decertification, of course, would not stop people from being identified in terms of their gender or sex, in all sorts of ways, in everyday social conversation and interaction. However, the ambition for decertification is that it would lessen the distinctions, which are hierarchical distinctions, between women and men by removing the institutionalisation of binary difference at birth.
Would removing the language of same / opposite sex erase and/or rewrite gay people?
No. People understand their sexuality in different ways. For some people, body parts are central to their sexual desires, for other people much less so. Some people are comfortable with the idea of same gender attraction (rather than same sex), others identify this as decentring the body. Being gay and lesbian is understood in many ways, with differently meanings, that are also historically specific. Being gay or lesbian may refer to sexual desire, romantic desire, emotional connection, political choice, or some combination of these. It is unlikely that decertification would resolve the tensions between these different understandings, just as the introduction of the protected characteristic of “sexual orientation” didn’t either. However, because decertification is likely to trouble the binary terms of “same” and “opposite” sex, it can prompt discussion about how sexuality should be legally addressed in equality law and whether it should adopt a more expansive approach, for instance, including people who identify as asexual.
Were gender-critical feminists interviewed in the project?
Yes. We carried out 200 interviews. Gender critical feminists were interviewed from various organisations, as well as independent commentators, and as members of wider publics. We also interviewed people from other organisations, and outside of them, with other perspectives. Many participants were interviewed because of their expertise, including their work in governmental or trade union bodies, or as service providers. These interviewees talked about the perspective of their organisation alongside their own views. We spoke with lawyers, academics, and legislative drafts-people, selected for their legal and scholarly work. Forty-four interviews were also carried out with members of the public to provide a wider range of views and experiences about the use and reform of gender-related categories.
For further details on our research, please see the publications. Many further publications from the project will be published over the coming year. Our publications also reference the excellent and innovative scholarly work by others that we drew on for our own analyses.