Reforming Legal Gender Identity: A Socio-Legal Evaluation

Lead Research Organisation: King's College London
Department Name: Dickson Poon School of Law Departments

Abstract

Feminist activists and scholars have long questioned the idea that gender is a natural biological distinction, arguing instead that concepts of masculine and feminine, and what it means to be a man or woman, are socially generated. More recently, transgender and intersex activists and scholars have supplemented these claims, arguing that people's gender identities should not be restricted to the gender assigned at birth. As many people seek to live in ways that do not correspond to stereotypical notions of their gender or otherwise diverge from the gender assigned them, law, in different jurisdictions, has responded. Gender-neutral laws, procedures for gender transitioning and, most recently, legal decisions recognising the possibility of non-binary gender identities unsettle traditional legal regimes based on two, biologically fixed, socially differentiated genders.

While reform initiatives internationally gain momentum, they tend to be limited in two key respects: first, they typically adopt an ad hoc or incremental approach to legal gender identity structures; second, they focus on legal accommodation of gender minorities rather than more general reform. At the same time, these legal and policy developments, the gender activism surrounding them (with all its internal disagreements, including over the meaning of biological sex), and the rapid upsurge of wider interest and concern about how to regulate and recognise gender identity have brought a more fundamental question to the surface: should gender remain a legal status assigned at birth; and what would be the implications of reforming this?

Our project addresses this question. It critically assesses different options for reform and their complex implications for law, policy and NGO agendas, focusing on the legal jurisdiction of England & Wales, but drawing also on developments in Scotland and overseas. Research is organised into three consecutive work packages. The first draws on international developments and activist arguments to outline possible options for reform (for instance, birth certificates with more than two gender options; allowing people to choose a legal gender on maturity; or modes of regulation that are more like sexual orientation and religion which are not, for the most part, formal statuses in English law while still identifying protected equality grounds). The second work package explores the implications of different reform options. It focuses on what different options mean: for gender-differentiated provision, such as single-sex schools, domestic violence shelters, and women's groups; for diverse equality agendas including ethnic, religious and other equality grounds as well as transgender and women's equality; and for how gender is codified in law, including the key technical and administrative challenges new legislation would face. This second work package also explores public attitudes to reform, and what this can tell us about the significance of legal gender in everyday life. The final work package draws the research together to understand key points of disagreement and tension regarding reform; and to assess the best reform option for going forward. This recommendation will be elaborated as a draft Bill in light of the data and legal principles of "good reform" to emerge from the research.

Adopting a multi-methods approach, research data include a public survey, documentary materials, audio-visual depictions of gender in practice, and interviews with NGOs, policy-makers, equality specialists, legal draftspeople, and wider public. Through meetings, workshops and production of a draft reform Bill, the project will actively engage stakeholders to participate in shaping and discussing research questions, analyses and conclusions, and finally to assess the project's methodology. Research findings, analysis and conclusions will also be disseminated through a book, articles, website, blog posts, presentations, social and mainstream media.

Planned Impact

As a major piece of law reform research, this project is intended to significantly contribute to debates about gender identity reform. While current agendas focus on the experiences of people whose birth gender does not "fit", this research addresses more broadly the implications of reforming a binary legal structure currently anchored in gender designation at birth.

It will contribute timely, evidence-based research to benefit government, non-government and service-providing organisations and, in its concluding phase, produce a draft reform Bill to focus further policy and wider public discussion on the legal regulation and recognition of gender identity in England and Wales. It will also generate in-depth social psychological data from a demographically diverse sample on everyday experiences of legal gender, as well as on attitudes towards legal reform.

Many representatives from stakeholder groups have already agreed to participate (see Pathways to Impact).

1. MEMBERS OF THE PUBLIC CONCERNED ABOUT GENDER DESIGNATION; WIDER PUBLIC. These will benefit from: accessible website explaining (1) current legal approach to gender identity; (2) debates about reform and different reforms options; and (3) diverse experiences of legal gender identity (including through audio-visual "capturing"). Later research stages will disseminate analyses of different reform options. Public engagement strategies will facilitate wider public discussion about how gender identity is changing, and law's contemporary and future role in relation to it.

2. GRASSROOTS AND POLICY CAMPAIGNING ORGANISATIONS; SERVICE PROVIDERS.
They will benefit from: new social psychology research on experiences of legal gender; comprehensive information on how gender is legally determined and how it might be reformed. One source of current conflict, that some reform options may intensify, concerns contexts where individuals and organisations apply incompatible gender criteria, and where both assume decision-making authority. Our research will suggest possible regulatory responses to this problem. Organisations will benefit from the project's assessment of regulatory techniques and different reform options in formulating internal policy solutions and in deliberating on and drafting public policy recommendations.

3. GOVERNMENT, PARLIAMENT AND LEGAL PROFESSION. The Women and Equalities Select Committee report on Transgender Equality (2016) recommended comprehensive action including addressing needs of people who identify as non-binary. Given the timing of this project, its research findings are ideally placed to influence future legal and policy debate. The research team will work with specialist lawyers, and policy-makers (including on the AG) drawing on research findings to respond to proposed law reforms and, where necessary, outline alternatives for government departments and shadow ministers. This project also has the potential to contribute to the OPC's Good Law project, which focuses on clarity and public accessibility of legislative drafting.

Collaboration as follows (see Pathways to Impact for full details):

A) Advisory Group (AG): Including representatives from the EHRC, Stonewall and EDF. It will meet at key stages to advise on research design, dissemination, and assessment of research methodology. Members will also assist in reaching research participants.
B) Stakeholder Involvement in Research Design: Key stakeholders (EHRC, EDF) have inputted into research design and will be consulted at each stage through the AG, expert meetings and stakeholder events. Lay participants will be involved in developing the survey (through a pilot); and data reflections in interviews (WP2C).
C) User-appropriate Activities/Dissemination: draft Bill presented at Policy & Practice event, fine-tuned and downloadable from website; 8 page non-academic summary of findings; organisational presentations, media coverage, website, and through social media.

Publications

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