What would happen if the law no longer certified whether a person was male or female? Now, birth certificates and GRCs say what our sex is, and everyone has one or the other, even nonbinary people, or people with variations of sex characteristics. There are rules on changing classification. What if that was ended? Would it help create a world where children were not socialised into gender, and people could live without gender-based expectations or constraints? The Future of Legal Gender project has published its final report, together with several articles, to answer these questions.
They refer to reform as decertification. It is a proposal made to see what it might mean, rather than to solve a specific problem. They interviewed experts, campaigners and ordinary people. Possible benefits include subverting the basis of discrimination, supporting self-expression, and removing the legal burden of gender change. They asked about possible problems, and clearly anti-trans campaigners have been at them, saying sex-specific services, data gathering, and positive action against discrimination could all have difficulties.
Possibly, law could decertify sex as part of a neoliberal project to stop law and government tackling social inequality. The project wants decertification to be part of a social justice movement to support diverse ways of flourishing. It would need to involve greater public provision, not continuing austerity.
Law could still prevent sex discrimination as it does race discrimination. Most people would object to having a race legally assigned to them. Many service providers recognise nonbinary people, and law is increasingly gender neutral.
People consulted spoke of the need to dismantle male domination, violence, and gender based roles and stereotypes. Trans people could back these goals and still advance their aim for recognition of diversity. The Project says gender is institutionalised, rather than being an identity. It is a set of institutional processes rather than personal qualities. It affects people’s values, patterns of wealth and power, and ways of interacting. They say understanding of sex is interpreted through a gendered environment. I say sex as in reproduction only matters if you want to reproduce, or have a physical health condition. Everything else is cultural. Most people agreed our lives should not be defined by the bodies we are born with.
A leisure centre manager said it was important not to assume someone’s gender. When asked where the changing rooms were, they would say the men’s is there, the women’s is there, and the accessible room is there, and leave it to the customer to make the choice. However, when at the cinema I asked where the loos were, I was sent to the men’s.
Sex inequality in the 19th century involved voting, property ownership, inheritance and employment. These legal inequalities have lessened. We need sociology to recognise and research inequality that remains, relating to poverty, work, violence, exclusion and social stereotyping.
Gender is a complex social phenomenon that produces the categories of women and men to shape people’s lives. Decertification might make that shaping less rigid. It would undermine the assumption that gender divisions in roles or behaviour are natural, lawful or desirable, and support diversity. It might counter early gender socialisation of children.
Would it prevent “single sex” spaces? Many women’s organisations rely on self-identification, not asking for legal documents or assuming that a person’s sex or gender could be known from their appearance. They use risk assessments to manage potential problems, rather than expecting biological status as female to safeguard users. Single sex spaces can imply that the risk to women is from strangers, but most violence has perpetrators the victim knows.
They suggest that sports could be classified as in the Paralympics, which assesses functional capacity. What of positive discrimination, such as all-women shortlists to select political candidates? Applicants could be asked to explain why they fit.
We need data to show the inequalities and needs of different groups of people. People’s experiences differ by social class, disability, beliefs and race as well as gender. Why is the data needed? More precise questions, such as “do you menstruate?” could produce more useful data. Any data collection is intrusive for people- the intrusion is justified if the data is used for their benefit.
Trans people can use a GRC to assert our gender, and that protection would be lost. However, I do not want to provide documentary evidence: I want my word to be accepted. I am a woman.
The project says legal reform can be part of a wider programme of change, one policy tool. It is a creative way of thinking big. The aims would be to end legally registered sex or gender, to help dismantle gender hierarchies, to support people whose gender leads us to be excluded or disadvantages, and to undo broader social injustice and inequality. For discrimination and the public sector equality duty there would be a new ground of gender. Employers and service providers could not impose gender stereotypes. Services could still exclude people based on sex or gender if this was done to address unfairness or safety.
The Telegraph report was merely mocking. “The census could ask ‘do you menstruate?’ instead of ‘are you female?’ to be inclusive of transgender people, a taxpayer funded study has suggested.” Including trans people is not the only reason for the project’s proposals, but they wanted to wind up anti-trans campaigners to hate the study as well as their usual anti-woke, anti-tax readers. A trans woman shared the Telegraph’s hate screed on facebook, so I learned about the report. I am so glad I did.
Reform is unlikely to happen soon, but I am glad people are thinking about the possibility.