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

10 25 50
 
Description 1. Significant new knowledge generated: an understanding of the benefits and risks associated with decertification.

Decertification abolishes a formal legal structure that places people from birth into unequal categories. It offers benefits to people who do not fit the current binary framework of women and men, and who feel obliged to squeeze into one category or another. It reduces the penalties and costs of living outside these categories, for example, as nonbinary, genderqueer or agender. It frees public bodies and other organisations from having to navigate a wave of litigation and other challenges as people who live outside or against the current binary sex/ gender structure seek recognition and inclusion within existing legal, policy and resourcing structures. And it the removes the need for formal gender transitioning procedures, which many participants experience as intrusive, pathologizing, disruptive and controlling.

Our research also identified concerns about decertification. These mainly related to concerns that decertification would make it harder to create stable divisions between the categories of women and men for purposes of single-sex provision, data collection, affirmative action and other women-only activities.

2. New or improved research methods or skills developed: development of prefigurative law reform as a research method. This research method involves posing a law reform question not yet on the table to generate serious and detailed attention towards its benefits and risks, reflexively considering how unofficial law reform proposals can and should be developed, attention to where law reform is and should be going over a longer time-span, and providing a critical lens on the present.
Exploitation Route - developing and using prefigurative law reform methods to address other legal/ policy questions
- developing decertification outside of legislative reform
- addressing the policy and legal changes that might be needed before decertification was introduced as a legislative reform
Sectors Communities and Social Services/Policy,Leisure Activities, including Sports, Recreation and Tourism,Government, Democracy and Justice

 
Description Invited participant in two discussions with Office for National Statistics re draft guidelines on the "sex" questions for the 2021 census
Geographic Reach National 
Policy Influence Type Gave evidence to a government review
URL https://www.ons.gov.uk/census/censustransformationprogramme/questiondevelopment/genderidentity/guida...
 
Description Submission to Government Consultation on Toilet Provision for Women and Men
Geographic Reach National 
Policy Influence Type Participation in a national consultation
URL https://www.gov.uk/government/consultations/toilet-provision-for-men-and-women-call-for-evidence
 
Description Major Research Fellowship
Amount £116,316 (GBP)
Funding ID MRF-2021-063 
Organisation The Leverhulme Trust 
Sector Charity/Non Profit
Country United Kingdom
Start 09/2022 
End 09/2024
 
Description Academic Colloquium on 20 June 2019 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Other audiences
Results and Impact This was an all-day, interdisciplinary academic colloquium, hosted by the full research team and attended by 35 invited academics from across the UK and the Netherlands. A small number of invited postgraduate students, working in related fields, attended. The colloquium aimed to discuss some of the early analysis arising from the different strands of our project, in conversation with critical, interdisciplinary, theoretically-engaged academic scholarship. The colloquium comprised six sessions: the challenge of same-sex provision (paper), the challenge of reforming legal gender status within a wider critical context (paper), gender diversity and legislative drafting (scoping conversation), gender's wider stakes: investments and attitudes (paper), fluctuating intensities: thinking about gender through disability (open discussion)) and sustaining the public place of gender (paper). The research team circulated their papers in advance; two or three academics were invited to give responses to each paper, as part of the panel, and the rest of each session was for questions and discussion. This format led to a very productive discussion, which we will reflect upon and feed into our early analysis. The research team is currently putting together a proposal for a special collection of the colloquium papers, aimed at publication in an online open-access journal, feminists@law, to further enhance the impact of the event.
Year(s) Of Engagement Activity 2019
URL https://futureoflegalgender.kcl.ac.uk/events-and-public-and-policy-engagements/
 
Description An international perspective on the future of legal gender 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact This virtual event took place in October 2020 in the form of a live stream. The talk focused on the international relevance of legal gender regulation and decertification and was aimed at an audience of Union members & activists as well as academics more broadly.
Year(s) Of Engagement Activity 2020
 
Description Challenges and complexities of conducting a prefigurative law reform project - on decertifying legal sex/ gender status 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Other audiences
Results and Impact Seminar was part of Collaborative Futures Making platform series of talks. The talk sparked good questions and interest in the research.
Year(s) Of Engagement Activity 2021
 
Description Dr Flora Renz invited to speak at UCU LGBT+ event 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Third sector organisations
Results and Impact Was invited as keynote speaker for the UCU LGBT Research Conference, Title: 'Future Visions of Equality Law for Trans people' - attendance 50 people, UK based
Year(s) Of Engagement Activity 2021
 
Description Dr Flora Renz invited to speak to Law Commissiom 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Third sector organisations
Results and Impact Was invited to give a talk to the Law Commission, Title: 'Future of Legal Gender: Exploring decertification as a Future Law reform option' - attendance 15 members of staff, UK based
Year(s) Of Engagement Activity 2021
 
Description Dr Flora Renz knowledge exchange with Taiwan Tongzhi (LGBTQ+) Hotline Association attendance 120 NGO volunteers/staff 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Third sector organisations
Results and Impact Was invited to take part in a knowledge exchange with Taiwan Tongzhi (LGBTQ+) Hotline Association, Title: 'Transgender Recognition in the UK' - attendance 120 NGO volunteers/staff, Taiwan based
Year(s) Of Engagement Activity 2021
 
Description Fawcett East London 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach Local
Primary Audience Third sector organisations
Results and Impact An invited talk and discussion to Fawcett East London group on contemporary gender politics.
Year(s) Of Engagement Activity 2020
 
Description Feminist gender politics - exploring our hopes and concerns 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Other audiences
Results and Impact This virtual event took place on 21 November 2021. It was intended as a small group discussion with feminists (academics and NGO/ activists) interested in exploring feminist approaches to gender beyond the current polarities over transgender politics. Its aim was to provide a space for people to reflect personally and politically on current concerns in advance of a larger in-person event (postponed due to covid) once this is possible again. It engaged people directly in some of the key feminist research questions posed by the project.
Year(s) Of Engagement Activity 2020
 
Description Festival of Social Sciences event: what if the state no longer sexed us 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach Regional
Primary Audience Public/other audiences
Results and Impact This roundtable discussion formed part of the ESCR's Festival of Social Science. The Festival of Social Science "celebrates some of the country's leading social science research, giving an exciting opportunity to showcase the valuable work of the UK's social scientists and demonstrate how their work has an impact on all our lives". The purpose and impact of the event reflected this - discussing questions addressed by our research with a wider audience, whilst drawing on the project's research findings to date. It was open to the general public, although numbers were limited to 40 to maintain the roundtable format. 30 to 40 people attended. After the panel's presentations (PI and Co-Is), attendees were invited to submit written questions and a lively discussion/ debate followed on from this.
Year(s) Of Engagement Activity 2019
URL https://www.eventbrite.co.uk/e/what-if-state-law-no-longer-sexed-us-tickets-74426795549#
 
Description Focus group (Lawyers) 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact Focus group to gain insight into draft legislative principles and generate vital discussion
Year(s) Of Engagement Activity 2021
 
Description Focus group (Unions) 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Other audiences
Results and Impact Focus group to gain insight into draft legislative principles and generate vital discussion
Year(s) Of Engagement Activity 2021
 
Description Focus group (lawyers) 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact We hosted an online focus group with barristers who had experience working on sex/gender cases and a government body with expertise in equality. We discussed legislative principles for a potential future law - decertification.
Year(s) Of Engagement Activity 2022
 
Description Future of Legal Gender podcast series 
Form Of Engagement Activity A broadcast e.g. TV/radio/film/podcast (other than news/press)
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Public/other audiences
Results and Impact The Future of Legal Gender podcast series explores what might happen if the state no longer certified sex/gender at birth. Each episode of FLaG's podcast series involves a discussion with a project member providing an overview of their research findings.
Year(s) Of Engagement Activity 2021
 
Description Future of Legal Gender: Virtual Launch of Special Issue of Feminists@Law 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Public/other audiences
Results and Impact 106 people attended this public, virtual event (out of 150 registered on Eventbrite), in which team members gave short presentations on their research findings to date, as recently published in a special issue of feminists@law, and then opened the floor for questions from participants. The event engaged participants in our research findings to date, gave rise to some interesting questions, and generally heightened interest in the project's research. We received a number of direct requests for a recording of the event from people who were not able to attend on the day, and we have posted a podcast on our website and on social media, which will reach a wider audience. We were also able to promote the new discussion forum on the project's website, which we hope will bring in further comments and engagement with the questions explored by the project.
Year(s) Of Engagement Activity 2020
URL https://futureoflegalgender.kcl.ac.uk/podcasts-2/
 
Description Genders that don't matter: Non-binary people and the Gender Recognition Act 2004 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Public/other audiences
Results and Impact This event took place in November 2020 as part of a wider event "The Queer Outside in Law" organised by the University of Bristol. The talk focused on the particular challenges posed by non-binary identities to legal gender regulation and decertification. The event was attended by more than 50 participants.
Year(s) Of Engagement Activity 2020
 
Description Invited to contribute to podcast participation 
Form Of Engagement Activity A broadcast e.g. TV/radio/film/podcast (other than news/press)
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Media (as a channel to the public)
Results and Impact FLaG was invited to contribute to an international podcast on the future. Dr Flora Renz took part in an interdisciplinary discussion. Episode was downloaded 35,000+ times according to figures provided by podcast host.
Year(s) Of Engagement Activity 2021
URL https://www.flashforwardpod.com/2021/09/22/what-is-the-future-of-gender/
 
Description Key findings FLaG website 
Form Of Engagement Activity Engagement focused website, blog or social media channel
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Public/other audiences
Results and Impact In December 2021, we updated our website (https://futureoflegalgender.kcl.ac.uk) with key findings for each of the four strands. The key findings have been viewed 200 times between December 2021-February 2022.
Year(s) Of Engagement Activity 2021,2022
URL https://futureoflegalgender.kcl.ac.uk
 
Description Key findings discussion with stakeholder organisation (Gendered Intelligence) 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Third sector organisations
Results and Impact Two members of our research team gave a presentation on the key findings followed by an interactive discussion with a stakeholder organisation.
Year(s) Of Engagement Activity 2021
 
Description Key findings presentation and discussion (ONS) 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact Two members of our research team gave a presentation on the key findings followed by an interactive discussion with a stakeholder organisation.
Year(s) Of Engagement Activity 2021
 
Description Key findings talk and discussion with Hackney Borough Council 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Other audiences
Results and Impact Two members of our research team gave a presentation on the key findings followed by an interactive discussion with a stakeholder organisation.
Year(s) Of Engagement Activity 2021
 
Description Kitchen table event - Decertification: What can removing sex from legal personhood do? (Keele University) 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Other audiences
Results and Impact A talk and discussion on decertification and other project themes that raised understanding of the research.
Year(s) Of Engagement Activity 2021
 
Description Legislative drafting workshop 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact We held a workshop with parliamentary drafters and masters' students specialising in legislative drafting. The workshop was organised in conjunction with the Institute of Advanced Legal Studies and Dr Maria Mousmouti.
Year(s) Of Engagement Activity 2021
 
Description Policy & Practice collaborative workshop 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Third sector organisations
Results and Impact 30+ people working in NGOs, unions, local government, charities, and the wider public sector joined us for a collaborative reflection on the project's key findings and imagined law reform proposal. In a post-event feedback survey, some participants reported that the event caused some questioning in a few areas.
Year(s) Of Engagement Activity 2021
 
Description Presentation for global communications company (Finsbury Glover Herring) 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Industry/Business
Results and Impact Presentation given to a corporation who learnt more about our key findings, including an overview of how we think law could develop in the future, and opportunity for related discussion
Year(s) Of Engagement Activity 2021
 
Description Rethinking Gender through Disability 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Public/other audiences
Results and Impact The virtual event took place on the 27th November. It was intended as a public/academic lecture for people interested in exploring the topic of identity regulation. It engaged people directly in some key questions posed by the project regarding the potential effects of decertification.
Year(s) Of Engagement Activity 2020
 
Description Talk/Discussion with Stakeholder Organisation (Stonewall) 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Third sector organisations
Results and Impact Two members of our research team gave a presentation on the key findings followed by an interactive discussion with a stakeholder organisation.
Year(s) Of Engagement Activity 2021
 
Description The Future of Legal Gender: What happens to single-sex organisations without a legal sex? 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach Regional
Primary Audience Public/other audiences
Results and Impact This event took place in February 2020 and focused on engaging a broad audience with some of the project's findings regarding the governance of single-sex spaces.
Year(s) Of Engagement Activity 2020
 
Description The Legal Regulation of Gender Recognition and Anti-Discrimination Law 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact This virtual event took place on the 13th of November 2020 and was part of a UCU organised programme of events for Trans Awareness Week. The event was livestreamed to more than 200 participants and focused on some of the key legal issues raised by the project and how these related to current debates around legal reforms.
Year(s) Of Engagement Activity 2020