This article explores the challenge of developing a feminist law reform proposal to decertify sex and gender based on research conducted for the ‘Future of Legal Gender' project. Locating the proposal to decertify within a do-it-yourself, prefigurative approach to law reform, the article asks: Can a law reform proposal be both instrumental and radical? Can a proposal take shape as a viable legislative text and as a more subversive intervention to unsettle and reimagine gender’s relationship to law? This article explores (...) this at two levels. First, it considers the ontological challenges of developing a controversial law reform proposal in terms of its realness (or fictiveness), contours, and temporality, turning to ‘slow law' as a credible way of approaching radical reform. Second, it explores the design-based challenges of legal prototyping—foregrounding questions of legitimacy, participation, and purpose, which arise in designing a decertification law. At the heart of this discussion is the relationship between representation and enactment—between what a proposal presents and what its presentation does and does not accomplish. (shrink)

This article explores the contribution that the figure of economy can make to understanding gender in contemporary Britain, focusing on gender as a social quality and legal category that is produced, allocated and used. The article proceeds in two parts. The first part considers the politics of sex-based feminism and gender-as-diversity through an economic frame. The second part focuses, in detail, on one specific juncture where these diverging politics meet: decertification – a law reform proposal to dismantle the system (...) for assigning, registering and regulating legal sex. Decertification is a controversial strategy. Advocates argue that self-expression and interpersonal communication, whether through gender or against it, is hindered by a state-based disciplinary certification system. Critics disagree. They argue that dismantling legal communication about a person's sex makes it harder to put categories of female and woman to remedial use. Drawing on other uses of certification, including commercial ones, this article suggests that certification not only communicates information about a process, quality or thing; it also contributes to their production. The impact of decertification on how gender is produced, what gets produced as gender and the uses to which gender is put are central to determining whether decertification is beneficial to a progressive transformative gender politics. (shrink)

This article considers what the implications of decertification would be for single-sex services such as domestic and sexual violence support. Some reform options attached to decertification could (re)allocate authority away from the state to organisations or individuals to determine gender criteria. What would the consequences of such re-allocation be in determining eligibility to receive or access services or excluding people on the basis of a characteristic protected under equality law? Engaging with this in the context of domestic and (...) sexual violence support service provision raises a number of questions. Firstly, does the existence of gender-based violence and/or of the effects it produces require a stable category in order to address them? What benefits may emerge from providing single-sex spaces that could not be replicated in other settings? And finally, what criteria of exclusion and inclusion are currently used to determine access to spaces beyond legal gender status? (shrink)

We have basic liberal rights to live and act with integrity; these rights very plausibly ground our rights to freedom of religious belief and expression. In section 1, I argue that many trans people need to be able to change their gender markers on their legal identification documents in order to live and act with integrity, and because of this, trans people have pro tanto rights to change their gender markers on their legal identification documents. In section 2, I then (...) argue that: a) there are no rights, harms, or other considerations that outweigh trans and nonbinary people’s pro tanto rights to freedom of legal gender identification; b) in virtue of a, blanket bans on gender marker change and surgery requirements on gender marker change are unjust and breach trans and nonbinary people’s all-things-considered rights to freedom of legal gender identification; and c) there is a strong presumption in favor of either the legal decertification of gender, gender self-identification, or similar policies that make it relatively easy for trans people to change their gender markers. Finally, in section 3, I argue that this integrity-based approach to rights to freedom of legal gender identification is superior to alternative privacy-, autonomy-, and harm-based approaches. (shrink)

Gender Identity: What It Is and Why It Matters is the first book in philosophy focusing on gender identity and transgender rights. To be trans is to have a gender identity different from the gender you were assigned at birth. But what is it to have a gender identity? The first part of the book develops a new account of our gender identity as the gender that seems to us to fit us. This subjective fit account of gender identity fits (...) with trans people’s testimony, explains why gender identities deserve respect, explains how we can discover our gender identity, explains why gender identities are practically important, and provides a good account of cis and trans and non-binary and binary gender identities. The second part of the book develops a new understanding of trans rights to gender marker change, legal gender recognition, gender-affirming healthcare, and sporting participation and accommodation. It develops an integrity-based account of trans rights on which these trans rights arise from basic liberal rights to live with integrity, to live in line with your judgements of how you ought to live, and what a good or meaningful life for you involves. Rights to live with integrity ground basic liberal rights to freedom of religious belief and expression. This book argues that they also ground trans rights. The second part of the book also addresses a wide range of gender critical feminist philosophers’ arguments against trans rights and shows that these arguments fail. (shrink)

Drawing on 38 in-depth, qualitative interviews, this article explores how people working in the equality sector in England and Wales view and use the current law around sex and gender, and how they imagine law’s future, particularly potential decertification, where the state would withdraw from certifying and regulating a person’s sex/gender. Whilst situated in the bureaucratic strand of the literature, the paper also contributes to wider legal consciousness studies. This literature has generally focused on people’s relationships to law in (...) terms of domination, alienation and game-playing. Drawing on idioms and the language of touch, the paper unpacks the way in which equality actors talked about law not as remote or alienating, but as close and familiar; not as oppressive, but as “precious” and hard-won. Some also regarded law as a place of safety in unsafe times. These proposed ‘attached to law’ and ‘protective of law’ strands of consciousness enrich and extend Ewick and Silbey’s classic ‘before the law’ narrative. The findings are also useful for critical legal and feminist scholarship. Combined with the equality sector’s pragmatic and tactical use of law to problem-solve, this close and protective orientation towards law reproduces its hegemony. The paper concludes by exploring a recurrent refrain that, in relation to decertification, “we’re not there yet” and that gender equality would need to be achieved before decertification would “fly”. (shrink)

Abstract‘The Future of Legal Gender’ project has assessed the potential implications for feminist legal scholarship and activism of decertifying sex/gender. Decertification refers to the state moving away from officially determining or registering sex/gender. This article explores the potential impact of such moves on equal pay law and gender pay gap reporting. Equal pay and gender pay gap reporting laws provide an important focus for the project because they aim to address structural dynamics associated with persistent pay inequality that women (...) experience across occupations in the United Kingdom. These legal measures illuminate gendering as a large-scale social problem widely understood to operate structurally and systemically. What effect, then, could decertifying sex/gender have on the law and conceptual power of equal pay? Might decertification undermine the structure of equal pay law, with all hard-won gains it has brought for women? Or is it possible to imagine that decertification could accompany a more inclusive and effective legal architecture for equal pay? (shrink)

This chapter moves to an analysis of Thailand’s contentious political episodes of 2005–2014. It was in this period that forces loyal (Red Shirts) and vehemently opposed (Yellow Shirts) to populist Prime Minister Thaksin Shinawatra fiercely contested governments as well as each other in the streets of Bangkok. The chapter analyses the shifts in interests, capacities, and mechanisms as the political contest fluctuated between agonism and antagonism for nearly a decade. The Thai case study provides a particular lesson regarding the circumstances (...) necessary for continued agonistic contests since much of the radical democratic activity in the episode occurred as a result of the decertification, and thus incapacity, of state actors. (shrink)

Drawing on evolutionary realism as a guiding framework and using relevant theoretical bases at macro-, meso-, and micro- levels, we investigate the relative variance explained by each level on selection and retention of Benefit Corporations. Based on a sample of 5052 observations of certified B-Corps and 1403 observations of decertified B-Corps, relative to the country and industry differences, firm-level differences explain most of the variance in non-economic performance, especially for workers and community impact areas. Industry-level differences explain small differences in (...) customers and environmental performance while country differences do not explain meaningful performance differences. The results also show a similar pattern in relative effects for decertified B-Corps. Our findings point to the value of disaggregating the relative effects of multilevel factors in further understanding drivers of non-economic performance and the decertification of B-Corps. (shrink)

This article examines three divergent constructions about the salience of legal gender in lay people’s everyday lives and readiness to decertify gender. In our interviews (and survey data), generally participants minimised the importance of legal gender. The central argument in this article is that feminist socio-legal scholars applying legal consciousness studies to legal reform topics should find scrutinizing the construction of interview talk useful. We illustrate this argument by adapting and applying Ewick and Silbey’s (1998) ‘The Common Place of Law: (...) Stories from Everyday Life', ‘before’, ‘with’ and ‘against’ typology to interview talk about legal gender, and critique their cognitivist approach by offering a constructionist alternative. In our analysis, we offer a detailed discursive explication of three key legal consciousness themes. These themes offer a balanced representation of a dataset problematically ‘skewed’ towards sex-based rights feminist perspectives, namely that ‘before’ legal gender is an anti-decertification account, decertification would be risky for natal females; a ‘with’ legal gender construction is neither for nor against decertification per se, though the impact of decertification is produced in accounts as limited and unimportant; and ‘against’ legal gender is a pro-decertification classification, as not abolished legal gender is constructed as harmful to already marginalised groups. In concluding, we explore the reasoning for the lack of readiness for decertification currently, and return to the value of examining the construction of lay discourse about legal matters as talk is a form of social action. We suggest that applying discursive analysis to themes in legal consciousness studies enables a refocusing on the how rather than purely the what of divergent legal consciousnesses, and that this approach is a fruitful addition to feminist socio-legal studies. (shrink)

This article considers what the implications of decertification would be for single-sex services such as domestic and sexual violence support. Some reform options attached to decertification could (re)allocate authority away from the state to organisations or individuals to determine gender criteria. What would the consequences of such re-allocation be in determining eligibility to receive or access services or excluding people on the basis of a characteristic protected under equality law? Engaging with this in the context of domestic and (...) sexual violence support service provision raises a number of questions. Firstly, does the existence of gender-based violence and/or of the effects it produces require a stable category in order to address them? What benefits may emerge from providing single-sex spaces that could not be replicated in other settings? And finally, what criteria of exclusion and inclusion are currently used to determine access to spaces beyond legal gender status? (shrink)

British equality law protections for sex and gender reassignment have grown fraught as activists tussle over legal and social categories of gender, gender transitioning, and sex. This article considers the future of gender-related equality protections in relation to ‘decertification’—an imagined reform that would detach sex and gender from legal personhood. One criticism of decertification is that de-formalising gender membership would undermine equality law protections. This article explores how gender-based equality law could operate in conditions of decertification, drawing (...) on legal thoughtways developed for two other protected characteristics in equality law—religion and belief, and disability—to explore the legal responses and imaginaries that these two grounds make available. Religious equality law focuses on beliefs, communities, and practices, deemed to be stable, multivarious, and subject to deep personal commitment. Disability equality law focuses on embodied disadvantage, approached as social, relational, and fluctuating. While these two equality frameworks have considerable limitations, they offer legal thoughtways for gender oriented to both its hierarchies and its expression, including as disavowal. (shrink)

In this roundtable discussion, early-career researchers working in the field of law, gender, and sexuality discuss international and trans-national developments to legal gender. ‘The Future of Legal Gender’ research project focused on the legislative framework of England and Wales to develop a prototype for decertification. The domestic legislation, however, was situated within a wider international context throughout the project. This roundtable discussion, therefore, provided an opportunity for reflection on the transnational issues raised by decertification, with a particular focus (...) on developments arising in the jurisdiction(s) studied by the early career researchers. The roundtable began with a brief outline of these recent developments before moving to an open discussion on key themes including the value of reform on wider society, changes on-the-ground by non-state actors, and alternative processes for tackling gender inequalities without certifying legal gender. The online conversation took place on 28 June 2021 and has been transcribed and edited for continuity, clarity, and referencing. (shrink)