Exploring the Textual Alchemy of Legal Gender: Experimental Statutes and the Message in the Medium

Abstract

This article draws on original empirical research to explore the politics of experimental feminist statutes. It has two main aims. First, it traces how conventional legislative drafting techniques have participated in the wider social creation and continuance of sex/gender norms. It shows how dominant statutory expressions of sex and gender that might otherwise appear timeless have shifted with social change and legal innovation. The article contributes to debates in feminist legal studies, legal anthropology, and legislative drafting by making visible, and analysing the particular power of legislative text, its ‘alchemy’, in expressing and re-creating sex/gender as a social, cultural and political artefact. Second, drawing on this research, the article explores what the Future of Legal Gender project might consider and do when drafting an experimental statute to decertify legal gender. Addressing questions of positionality, believability, legal form and the use of potentially innovative or contested drafting techniques (the singular “they”, the second person), the article explores tensions between legislative drafting and feminist legal method, as well as the benefits for bringing feminist analysis and perspectives to this important aspect of legal practice. Given that legislative drafting does not merely inscribe pre-agreed policy ideas into legal text but helps to shape emerging ontologies of gender, then drafting an experimental statute invites feminists to pay attention to interlinked questions of substance and form in the exploration of prefigurative legal futures.