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The Challenge of Removing Legal Sex Status

Professor Davina Cooper

Research Professor in Law and Political Theory

13 June 2022

The Future of Legal Gender Project, ESRC funded 2018-2022

Should our sex and gender remain “legally controlled” classifications?

The Future of Legal Gender Project, which ran from 2018, recently published its findings and conclusions. The report identifies benefits and challenges in dismantling legal sex status (which would remove sex from birth certificates). It shows that equality protections, positive action, women’s spaces and services, and effective data collection do not require sex to be a legal marker. However, this does not mean Britain is ready to dismantle the current system.

The report aims to stimulate discussion, among specialists and the wider public, about the implications of dismantling a system of legal sex status. It does not advocate for a particular legal outcome, either to keep or abolish legal sex, but draws on findings from four years of extensive research to identify some key issues and lines of analysis.

The origins of the project lie in the legal and policy discussions, taking place globally, over how to include people who transition, and people with differences of sexual development (sometimes known as intersex), within the existing binary structure that classifies and manages sex and gender differences. While some countries now recognise a third sex or gender, the detailed and complex adjustments being legally introduced over how to transition, who can transition, how many times you can transition, and what genders you can transition into prompted us to ask: what value is there in having a system of legal sex?

Between 2018-2022, we conducted a survey, held focus group discussions, and undertook over 200 interviews with government officials, trade union staff, service providers, NGOs, lawyers, wider publics, and academics, mainly in Britain. We wanted to know what people thought about “decertification” – the term we use for removing legal sex status - what they thought its benefits would be, and what they saw as its risks.

Decertification is tagged by critics as a political demand that is only relevant for people with minority sex and gender identities. The difficulties that transgender and intersex people face is one reason for decertification, a reform that would also enable people to live officially without a gender status. But interviewees suggested other reasons, based on their desire to move towards a society where gender hierarchies and stereotypical expectations no longer operate.

Many interviewees on different sides of the debate said they would like gender to play a less prominent role in society – given its current relationship to violence, inequalities of pay and power, unequal domestic and care responsibilities, and inequalities in esteem and physical confidence. Where they often disagreed was on whether removing legal sex and gender status should happen once society had changed or whether it could contribute to society changing.

The Future of Legal Gender considered decertification as a “slow law” proposal. This is an approach to legal research that takes up ideas proposed by stakeholders for long-term future reform to encourage their public discussion. To some extent, though, policy change is already underway. Our research found councils, unions, other employers, and service providers seeking to recognise and respond to the needs of people who identify as nonbinary, as well as those transitioning informally. Some organisations, including women’s services, told us that they had relied on people self-identifying their gender or sex for many years. They used risk assessments to manage or exclude people who seemed disruptive rather than legal sex.

Understandings of sex and gender are changing. One reason for researching decertification was to shed light on these changes and to consider the challenges that a more pluralistic, informal, and fluid approach to sex and gender may face. The report and our other published writing discuss these challenges in more detail.

Some critics we spoke with worried that decertification would make policies and laws to counter women’s subordination hard to operationalise. The need for remedial action, they suggested, requires sex to remain certified. Yet, other social inequalities that make people up, including sexuality, ethnicity, and socio-economic class, lack legal status. Nobody we interviewed suggested these relations should acquire it: for instance, sexuality becoming something that needs to be registered, tracked by the government, and subject to a formal process if it changes. Governments need to be able to address social inequality effectively without the categories of inequality becoming formalised legal parts of a person. This is one of the challenges that exploring decertification brings to the fore.

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Davina Cooper

Davina Cooper

Research Professor in Law

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