In one sense, old-fashioned feminists like me should be grateful for The Future of Legal Gender, a four-year publicly funded research project. That’s because it makes crystal-clear what is sometimes denied by advocates of the new gender politics: that there are some who aim to reduce the importance of sex (the set of biological characteristics that distinguish male and female people) in law and society, and to replace it with the more slippery concept of gender.
The claim often made of the campaign for “gender self-identification”, already introduced in several countries and on its way into Scottish law, is that this is simply a technical adjustment to make the existing legal framework for transgender people to change their legal sex more humane. Currently, in the UK, a diagnosis of gender dysphoria is needed for a person to go through the process set out in the Gender Recognition Act, whereby a transgender person’s legal sex is altered to match their acquired gender. Activists argue that this requirement should be removed, so that the process is demedicalised and becomes a less onerous statutory declaration.
Feminists, it is often argued, are chasing shadows when we argue that the implications of self-ID go far beyond the stated goal of making life easier for transgender people. Misinformation, anxiety or bigotry (or some combination) have led us to believe that women’s rights are threatened by activism around gender identity, when nothing of the sort is true.
The research led by Davina Cooper, a professor in law and political theory at King’s College London, shows how wrong such arguments are. The academics present themselves as explorers rather than campaigners. But they are clear that, unlike most law reform projects, this one started not with a problem but a “solution”. That solution is the abolition of legal sex status. If enacted, this would mean that UK people no longer have a legal sex, recorded when their birth is registered (and altered when a person acquires a gender recognition certificate).
Their contention is that by labelling babies male or female, society sets in train the process of “gender-based socialisation”. As well as preventing this, the abolition of legal sex would also make life easier for people who don’t fit neatly into either category, either because they are transgender or due to physical differences in sex development. As the researchers point out, currently some facts about us have registered “legal statuses” (nationality, marriage) while others do not (sexual orientation). Their suggestion is that sex should be decertified, moving from the first category to the second.
As someone who is convinced about the continuing salience of sex, I think they could not be more misguided. While reproduction and sex remain socially and politically contested (as they always will, unless people stop advocating for their reproductive and sexual interests and desires), it is dangerous to pretend that female people are not vulnerable in specific ways to male violence and other forms of social control. Statements such as “our lives should not be defined by the bodies we are born with”, in the final report, are in my view irresponsible as well as untrue. Of course, the bodies we are born with, including their reproductive parts, define our lives in some ways. This is reality, not sexist essentialism.
The fact that gender expression is becoming more fluid does not negate the importance of sexual characteristics. This is true for the growing number of young people with gender dysphoria, as much as for anyone else. Arguably, there is no group for whom it is more important to be clear about human sexual and reproductive functions than those who may seek to alter their bodies using drugs or surgery.
For anyone under the impression that research projects such as this one have little bearing on real life, evidence given at Allison Bailey’s recent employment tribunal is worth reading. Bailey, who is a black, lesbian barrister, is suing Garden Court Chambers and Stonewall for discrimination and victimisation. They deny it. In court last month, Stonewall’s head of trans inclusion, Kirrin Medcalf, said: “I wouldn’t say that trans women were born male, they’re born as trans women.” In other words, in the view of this Stonewall staff member, a trans woman has never been male.
The reality, as this evidence showed, is that efforts to reduce or remove language referring to sex from public discourse have already moved beyond the “speculative” realm referred to by Cooper, and are publicly advocated for in multiple ways.
The Future of Legal Gender academics even have a term for the process whereby small, incremental shifts gradually lead to bigger ones: “slow law”. Recent reports of sex-specific language being edited out of public health information published by the NHS could be seen as an example.
In an effort to be inclusive of transgender people, the word “women” has been made less prominent in descriptions of cervical and ovarian cancer, which some experts said could create barriers to care.
At least the Future of Legal Gender project puts these arguments out in the open. Last month the Labour MP Stella Creasy described the cluster of women’s groups formed over the past few years to defend women’s sex-based rights as “the people’s front of Judea”, a slighting reference to Monty Python. The existence of a law reform project should bring an end to such dismissiveness. If altering the legal status of sex is to be debated, then those who object have every right to join in.
I wish people would think harder about why this anti-materialist movement, which campaigns for subjectively determined human identities to take precedence over biology, has gained so much strength at the precise moment in history when it is most essential that we should be materialists, prepared to confront the limits of nature. My view is that as resource pressures continue to increase, the risks to women and girls globally will increase – along with the risks to billions of other already vulnerable people. Sex is likely to matter more, not less, in the future.
Cooper’s team regards the abolition of legal sex as a utopian social justice project. But they admit that there is an alternative context for what amounts to a deregulation of identity. Their final report says the removal of sex markers from birth certificates, and other public records, could also “take shape as a neoliberal measure within a programme of government withdrawal” from equalities. Of these two possible scenarios, I know which I think is more likely – and it isn’t the utopian one.
Susanna Rustin is a writer and a Guardian leader writer