Governing Legal Embodiment: On the Limits of Self-Declaration

Chris Dietz

doi:10.1007/s10691-018-9373-4

Abstract

This article presents the first empirically-based and theoretically-informed investigation of the effectiveness of the ‘self-declaration model’ of legal gender recognition in Denmark, the first European state to adopt it. Drawing upon analysis of legislative materials, as well as interviews with stakeholders in the legislative process and trans and intersex legal subjects, it contends that self-declaration is not without its limitations. By conceptualising embodiment as an ontological and epistemological process of becoming, and emphasising the institutional dimensions and effects of such processes, it demonstrates that self-declaration may not address the complexities of legal embodiment, particularly concerning restrictions on trans and intersex people’s access to health care. The article’s empirical findings are directed towards the policymakers and activists tasked with shaping reforms of gender recognition legislation in the UK and elsewhere. The analytical agenda it develops may be adopted, and adapted, by scholars working in this area and other regulatory contexts.

Highlights

This article interrogates the ‘self-declaration model’ of legal gender status through the lens of embodiment
While the list of states that have adopted it increases—with Argentina,1 Denmark,2 Malta,3 Colombia,4 the Republic of Ireland,5 Norway,6 and Belgium7 having done so, and Sweden8 on course to follow—there remains a gap in the literature concerning how effective self-declaration has been at meeting the needs of subjects who do not identify with the gender they were assigned at birth
Feminist legal studies of embodiment address how mind/body dualism is reproduced in law, offering insights into how reforms which seek to improve the standing of marginalised subjects—including those who do not identify with the gender they were assigned at birth—fail even upon their own terms

Summary

Introduction

This article interrogates the ‘self-declaration model’ of legal gender status through the lens of embodiment. Why the United Kingdom (UK) government responded to the Women and Equalities Committee (2016) recommendation to update the Gender Recognition Act (GRA) 2004 ‘in line with the principles of gender self-declaration that have been developed in other jurisdictions’ (14) by stating a preference ‘to see more evidence on the case for change and the implications of [...] moving to a self-declaration process’ (Government Equalities Office 2016, 11). This article addresses this deficit for the benefit of the legislators, policymakers, campaigners, and activists involved in shaping proposed reforms. The article concludes by discussing the complexities of trans embodiment which have yet to be addressed in Danish law, as the needs of embodied legal subjects are truncated and neglected

Methods and Ethics

Conclusion