If the State Decertified Gender, What Might Happen to its Meaning and Value?
| DOI | http://doi.org/10.1111/jols.12000 |
| Published date | 01 December 2016 |
| Date | 01 December 2016 |
JOURNAL OF LAW AND SOCIETY
VOLUME 43, NUMBER 4, DECEMBER 2016
ISSN: 0263-323X, pp. 483±505
If the State Decertified Gender, What Might Happen to its
Meaning and Value?
Davina Cooper* and Flora Renz**
As jurisdictions reform gender identity laws to accommodate trans-
gender and intersex people, this article speculatively explores a more
fundamental shift: eliminating state law's role in determining and
assigning gender status altogether. Adopting a feminist perspective, we
explore what the meaning and effects of comprehensively reforming
legal gender might be upon gender's constitution as a socio-legal
property, differentially recognized and protected by diverse but un-
equal bodies. Our discussion proceeds along two intersecting paths.
The first concerns the different classificatory methods which could
enable state law, without assigning gender, to continue to regulate
gender identity decisions, thereby allowing state law to remain
involved in tackling gender discrimination. The second concerns the
changing form gender might take in conditions where state law
withdraws its allocative function. These paths converge in a final
discussion which considers what legal and political effects might
follow from gender becoming a property that is individually and
collectively cultivated.
Over the past decade, transgender activists and scholars have been at the
forefront of moves to modify national systems of sex/gender
1
certification,
483
*Kent Law School, Eliot College, University of Kent, Canterbury CT2 7NS,
England
d.s.cooper@kent.ac.uk
** City Law School, City, University of London, London EC1V 0HB, England
flora.renz@city.ac.uk
We are very grateful to Lizzie Barmes, Avi Boukli, Didi Herman, Emily Grabham,
SineÂad Ring and the four anonymous JLS referees for their very helpful comments on
earlier drafts.
1 The relationship between sex and gender is complex and contested; for useful recent
accounts of their interrelationship, see J. Conaghan, Law and Gender (2013) 17±23;
S. Cowan, `Gender is no Substitute for Sex: A Comparative Human Rights Analysis
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
working to make them more responsive to those whose gender identities
change or appear to have been misrecognized.
2
Across different juris-
dictions, these moves have taken varying forms: from adding additional
gender categories to birth certificates,
3
to reforming gender transitioning
procedures so they are based on self-identification rather than medical
judgement,
4
to reducing the number of official contexts in which gender
identification is required. Yet, despite variations in approach, what these
contemporary moves to modify gender certification systems share is a policy
lens trained on transgender (and to a lesser degree intersex) people as a
disadvantaged minority deserving better legal accommodation.
This article takes a different approach. Instead of approaching gender
assignment from the perspective of minority need, which risks perpetuating
the notion that those being accommodated are a socially differentiated,
pathologized group, it explores options for legal reform that would impact on
how gender is determined for all members of a polity. In particular, we are
interested in reforms that would mean gender was no longer legally assigned
at birth. But, while straightforward to phrase, what declas sifying or
`decertifying'
5
gender identity might bring into being, in conditions where
deregulation invariably involves new forms of regulation, is far more open
and uncertain. In complex regulatory conditions, such as those governing
contemporary Britain, decertification could mean the state's withdrawal
from assigning gender while still recognizing self-determined gender iden-
tities, for instance, in anti-discrimination law, equality monitoring or census
surveys. But who gets to determine what gender means? Would state law
defer to individual understandings; would it continue to establish criteria for
gender and the spectrum of recognizable genders despite no longer classify-
ing individuals; or, in ways more akin to the regulation of religious plurality
in Britain, would state law defer to gender-identity criteria and categories
established by collective bodies? This article explores these different
484
of the Legal Regulation of Sexual Identity' (2005) 13 Feminist Legal Studies 67±96.
To avoid repeatedly referring to sex/gender, we use `gender' to cover both the state's
legal assignment of sex or gender status, and the regulation and expression of both sex
and gender identities.
2 See, for instance, P. Currah and L.J. Moore, ```We Won't Know Who You Are'':
Contesting Sex Designations in New York City Birth Certificates' (2009) 24 Hypatia
113. For a useful international report, see M. van den Brink and J. Tigchelaar, M/V en
verder Sekseregistratie door de overheid en de juridische positie van transgenders
(2014).
3 See, for example, NSW Registrar of Births, Deaths and Marriages v. Norrie [2014]
HCA 11.
4 See, for instance, the analysis of Argentina's gender identity law by L. Mottet,
`Modernizing State Vital Statistics Statutes and Policies to Ensure Accurate Gender
Markers on Birth Certificates: A Good Government Approach to Recognizing the
Lives of Transgender People' (2013) 19 Michigan J. of Gender and Law 376.
5 We use this phrase for reforms that would abolish the present system of gender
certification, which assigns, confirms, and authorizes people as male or female.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
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