Abstract
The panel were given the following question as a topic for discussion: T o what extent does the legal construction of gender constitute the history of gender?' I'm afraid I find it unanswerable and largely because of the phrase 'legal construction'. It appears to suppose that there is something called 'the law' and that it does things, like defining the attributes, including the sexual identities, of persons. Now legal categories and rules are not merely proscriptive, it is true that laws do define and specify the legitimate capacities of social agents. But the law is not an entity, it is a very complex set of rules and institutions, persons and activities, and it is by no means consistent in its action. It follows that legal rules, judgements of courts, and legal arguments are often acting in contradictory ways. There is no legal instance specifying the attributes of persons consistently and coherently. Gender or sexual difference will not, therefore, have a consistent history of construction in law. What law AS is a matter for argument. Hence we shall be forced to spend much of our time today on questions of jurisprudence rather than sexual difference. For example, a great deal of 'law' consists in enabling legislation which empowers bureaucracies and other agencies to elaborate their own administrative regulations — the DHSS, the BMA and so on. What is and is not 'law' is, therefore, often a matter of intense dispute. Mrs. Gillick's lawyers contend that the possessive rights of parents are superior to the doctors' administratively-sanctioned capacity to judge whether or not it is in the best interests of the child to give contraceptives to under-age girls without the parents' consent or knowledge. Here a proprietal 'right' confronts an administratively-sanctioned power of discretion.
Published Version
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