As many countries in the global North move towards gender-neutral law, make it easier to transition, and start to recognise other gender identities, the Future of Legal Gender project, based at The Dickson Poon School of Law, has been asking if there are good reasons, in Britain, to retain the current, formal system of legal sex and gender status. This system begins with the registering of sex at birth. What would the implications be, the Economic and Social Research Council (ESRC)-funded project asks, of dismantling this structure, for law, society, and social justice?
The project has today published its final report, Abolishing Legal Sex Status: The challenge and consequences of gender-related law reform. This report details the project’s key findings and conclusions, and addresses the risks, challenges and rewards in reforming the law on sex and gender.
Professor Davina Cooper, who led the project, said: “Our aim was to explore the implications of reforming, in a British legal context, how sex and gender are treated in law. We take for granted that people have a legal sex and gender but is this something to hold onto? The project sought to encourage reflections on something that has long been taken for granted. While the current time may not be right for reform, its discussion is important.
“We live at a time of ongoing inequalities and violence based on gender. Does having a legal sex and gender help to address these inequalities and violence? Does it reinforce the notion that the sex a person is registered with at birth is important in shaping the life they ought to lead? Can government tackle inequality without fixing and defining people’s membership in a category?
“We have a legal sex but not a legal sexual orientation or race, for instance, yet British equality law addresses these inequalities too. Our project explored and tackled some of the challenges that reforming law’s use of social categories poses.”
Key points from the final report
- Abolishing legal sex status, or “decertification”, the report finds, has several benefits. These include dismantling a legal structure that entrenches and legitimates gender-based differences. Abolishing legal sex status would support greater diversity in self-expression and remove legal burdens from those who seek to change their sex or gender. Dismantling the current structure would also create greater legal parity with how the law responds to other social inequalities, such as race and sexual orientation, which don’t rely on legal status assigned at birth.
- Critics of reform highlighted several risks. These included for gender and sex-specific services, data collection, violence, and positive action, particularly in relation to women. The report identifies ways of addressing some of these risks.
- The project’s research identified policies and practices by public, community, and commercial organisations responding to a new gender landscape, where conventional assumptions about women and men no longer hold. The report discusses examples of public bodies and other organisations developing policies to recognise people who identify their gender in plural and sometimes fluctuating ways, including as nonbinary, agender or genderqueer.
- Abolishing legal sex status would need to address many areas where sex and gender terms are used in British law (including marriage, reproduction, and housing). Importantly, legal reform involves more than simply removing sex or gender from registration documents. The project has produced a set of legislative principles for decertification, which are included in the report. These legislative principles are intended to encourage wider discussion about future change.
Professor Davina Cooper: “The project approached “decertification” through the lens of “slow law”. This doesn’t mean postponing change to another time, or simply accepting that law reform is often a slow (sometimes too slow) process. Slow law here involves a process of exploring and imagining far-reaching legal change and the challenging questions that surface. It aims to engage people in something that is participatory, open-ended, creative, and exciting.”
Over four years, the Future of Legal Gender Project conducted extensive research, including a public survey with over 3000 responses, 200 interviews with stakeholders (including trade unions, regulatory bodies, local councils, service providers, and NGOs), and a series of focus groups with law and policy experts.
The Future of Legal Gender project ran from 2018-2022 and was led by Professor Davina Cooper, from King’s College London, in collaboration with Professor Elizabeth Peel from Loughborough University and Professor Emily Grabham and Dr Flora Renz from the University of Kent. Dr Robyn Emerton, Dr Jessica Smith, and Dr Han Newman worked as researchers on the project.
The project has also published a briefer overview, as a summary of the final report.