The Perils of Gender Self-Determination: Global Shifts in Sex Reclassification Law and Policy

Abstract

Abstract The Article maps the global rise of the emerging gold standard for recognition and protection of trans populations: laws and policies allowing for self-identification of gender identity, commonly referred to as “gender self-determination.” The Article suggests that, while gender self-determination allows for greater access to resources and opportunities for transgender people because it removes grave breach to bodily autonomy, it also formulates “gender identity” as a private entity of the self, separated from publicly assigned sex. Thus, gender self-determination inevitably redraws the public–private divide along the contours of the transgender body, suggesting a need to examine the apparatus of assigning sex at birth and its pivotal role in both the systemic exclusions of trans people and gender inequality more broadly. To make this case, the Article provides a comparative review and analysis of laws and policies allowing for sex reclassification on identity documents from over a hundred jurisdictions worldwide, from a complete ban on classification, through medical and corroborations requirements, to gender self-identification. The Article demonstrates a shift within sex reclassification policies from the body to the self, from external to internal truth, revealing a growing emphasis on the separation of gender identity from sex in legal analysis, pointing to its possible detrimental effects on questions of sex-based equality. To secure the autonomy of the trans legal subject, self-determination laws and policies formulate gender identity as an inherent and internal feature of the self. Yet, the sovereignty of a right to gender identity is circumscribed by the system of sex classification and its individuating logics, in which one must be stamped with a sex classification to be an autonomous legal subject. Finally, the Article argues that addressing the distribution of life prospects along gender lines requires going back to the category of sex and critically rethinking its fundamental differentiating structures.