Abstract
British equality law protections for sex and gender reassignment have grown fraught as activists tussle over legal and social categories of gender, gender transitioning, and sex. This article considers the future of gender-related equality protections in relation to ‘decertification’—an imagined reform that would detach sex and gender from legal personhood. One criticism of decertification is that de-formalising gender membership would undermine equality law protections. This article explores how gender-based equality law could operate in conditions of decertification, drawing on legal thoughtways developed for two other protected characteristics in equality law—religion and belief, and disability—to explore the legal responses and imaginaries that these two grounds make available. Religious equality law focuses on beliefs, communities, and practices, deemed to be stable, multivarious, and subject to deep personal commitment. Disability equality law focuses on embodied disadvantage, approached as social, relational, and fluctuating. While these two equality frameworks have considerable limitations, they offer legal thoughtways for gender oriented to both its hierarchies and its expression, including as disavowal.
Highlights
Gender transitioning and the rejection of sex as fixed and binary have gained public ground in Britain in recent years
This article responds to the last claim: that sex and gender need to be formally assigned for equality law provisions to operate. We focus on this argument because it is one that we repeatedly encountered in our fieldwork from critics of decertification—that women’s experiences of discrimination and disadvantage cannot be properly addressed, in equality law, if sex loses its status as part of legal personhood
While we explore plausible revisions for remaking gender as a protected ground, we do not suggest that equality law frameworks such as the Equality Act 2010 provide adequate mechanisms for undoing systemic inequality or even for addressing disadvantages relating to minority religions and disability
Summary
Gender transitioning and the rejection of sex as fixed and binary have gained public ground in Britain in recent years. Attention has focused on procedures for gender’s recertification Arguments for decertification have been made on several grounds: the expansion of gender-neutral law, in liberal jurisdictions such as Britain, makes the formal gendering of people redundant; abolishing legal sex/gender status ameliorates difficulties faced by those whose personal sense of self aligns poorly with their formally assigned status; it allows people to live publicly without a formal gender label; counters the heteronormative assumption that gender matters (aside from as a cause of injustice); and decertification unsettles the naturalised alignment of gender with human subjects (see Cooper and Renz 2016; Cannoot and Decoster 2020; Cooper and Emerton 2020; Venditti 2020; Renz 2021) Rather than focusing on pluralising and simplifying recertification (such as through self-declaration), it proposes that state law withdraw from assigning, confirming, or requiring sex/gender status, including by removing sex from birth certificates. Arguments for decertification have been made on several grounds: the expansion of gender-neutral law, in liberal jurisdictions such as Britain, makes the formal gendering of people redundant; abolishing legal sex/gender status ameliorates difficulties faced by those whose personal sense of self aligns poorly with their formally assigned status; it allows people to live publicly without a formal gender label; counters the heteronormative assumption that gender matters (aside from as a cause of injustice); and decertification unsettles the naturalised alignment of gender with human subjects (see Cooper and Renz 2016; Cannoot and Decoster 2020; Cooper and Emerton 2020; Venditti 2020; Renz 2021)
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