Amelioration, inclusion, and legal recognition: On sex, gender, and the <scp>UK</scp> 's Gender Recognition Act

Philosophers engaged in projects of ‘ameliorative inquiry’ offer accounts social categories, such as those race and gender, that set aside the descriptive question understanding categories they currently exist favour developing how we ought to think given our political goals. For feminists whose goal is combat gender injustice, dictionary definition ‘woman’ ‘adult human female’ has, on face it, little offer. If see injustice arising primarily out system patriarchal oppression, then ‘women’ ‘girls’ classes people who are primary targets oppression might seem appropriate, even if it turns these exclude some females include males. And also involving an unjust imposition gendered expectations regardless their own selves, account females’ appear exacerbate this kind by forcing into contrary identities. As a result, consequence ameliorative inquiry often recommend revise existing concepts so better serve ends. But what should do if, having inquiry, come conclusion need be amended? Concepts definitions have life outside philosophy, presumably convinced revisions needed something say about change use discussions taking place philosophy journals. In case terms ‘girl’, legal meanings uses. The natural proposals amend represent inquiry. Indeed, recent years, many jurisdictions been grappling with whether ways which sex and/or recognized law; opportunity presents itself for involved practical changes. Right Legal Recognition. Everyone has right recognition without reference to, or requiring assignment disclosure of, sex, sexual orientation, identity, expression characteristics. obtain identity documents, including birth certificates, information documents while included them. STATES SHALL: While no state formally signed up bound Yogyakarta Principles, taken very seriously guide best practice. It against backdrop Principle 31 can understand UK (both England Wales consulted 2018 government, Scotland passed Scottish government December 2022) 2004 Gender Recognition Act (GRA) move self-determination (self-ID) line Part C 31. What, then, offering around gender? part, course, will depend one's account. This article take proposal Katharine Jenkins2 starting point, consider someone Jenkins's approach conclude gender. Given live issue debate, takes legislative framework3 its central study, considers legislation (including GRA 2010 Equality (EA)) serves protect interests target groups ‘woman’, wish promote justice analysis. However, broader context international moves implement 31, lessons study setting implications elsewhere too. particular interest, because result her deliver two separate concepts, hence (albeit overlapping) she equally important aim oppose gender-based thus deserving ‘equal status within feminist theory’.4 being classed woman female identity. What makes interest relation debates over typically opposing sides argued primacy one notion another (that is, broadly sex-class-based gender-identity based notion, vice versa). A point sees both notions equal importance concrete preserve (or, at least, provide framework recognized, balanced where conflict). Even there either side debate would reject position important, extent ensuring preferred sense adequately catered legislation, shows protected law compromise single-account views ‘woman’. Such grounded principles toleration alternative not accepted, insofar main protects women whichever important. We start reminder (in Section I) Jenkins fight injustices, before Sections II III) considering each them represented current (particularly via EA). I argue that, EA outlaws discrimination grounds perceived, well actual, possession characteristic, characteristic class-based observed imagined female), though everyone counts counted according EA's category. III notes, contrast, provision only recognizes identities small subset identify women, ill suited recognizing non-binary IV introduce self-ID (as recently enacted parliament) might, improving situation vis-à-vis nevertheless weakens protections sense).5 V offers route treating preferable ‘self-identification’ straightforward protection all transgender contention moving self-identification Principles collapses way undermines sex-based provided which, argue, class, making difficult fully argues instead characteristics: (understood biologically per law)6 (determined basis self-identification). Separating allows identities, proper trans understood match sex. clear service could gender-identity-based lines permitted legislation), one-size-fits-all single-sex single-gender services. By advocating proliferation sex/gender-based law, however, goes just but more radical A: states altogether end registration sex/gender part individual's personality. far seen uptake, advocates focusing sex/gender, C, rather than pressing deregistration sex/gender. Thus systems date adopted 19 countries, Argentina 2012 joined most 2022. much less enthusiasm adopting recommendation A, although Australian Tasmania steps direction longer recording certificates (though still registered birth). ESRC-funded project, ‘The Future Gender’ (FLaG), explored pros cons context; final report project team proposed along merging characteristics ‘sex’ ‘gender reassignment’ UK's single ‘gender’.7 FLaG team's eliminativist removing entirely personality intriguing one, advocate here, seems me carry similar dangers ‘merging’ importantly distinct carried standard continuing record doing self-identification. those, though, tempted eliminativism, read conditional: business legally (one biological matter self-identification), stopping inadequate half-way house (which stands between complete hand full other) conflating identifies concept concept,8 arguing necessary aims. briefly review here. males differ physically, systematically positions. concern, put simply, societies, whole, privilege individuals male bodies.10 Recognizing hierarchical structure class another, Haslanger's define membership subordinated structure. Importantly, Haslanger, (on other drawing male/female divide) politically purposes: anyone regularly perceived11 society placed subordinate role suffer from relevant category identical one. person Complete Androgen Insensitivity Syndrome (CAIS), example, classifications XY chromosomes (internal, undescended) testes, outward appearance and, such, experiences under conditions patriarchy like female. same perceived men may successfully transition dominant male. So defining receiving female, adult neither nor sufficient woman. S iff marked subordination actual bodily features presumed evidence female's reproduction.12 Although Haslanger doesn't great deal hangs ‘man’ pick members patriarchy, long needs sake clarity, term ‘womenCL’ sense—that so-called ‘sexually-marked subordinates’—and reserve ‘womenID’ second, identity-based Regardless choice terms, agree improve lot womenCL. X S's internal ‘map’ formed member through material realities are, context, Xs class.14 class.15 To avoid circularity, norm-based ‘maps’ appeals different norms enforce womenCL coercively imposing roles imposed presence roles, hypothesizes, gives rise mental maps help sexist reminding apply various contexts. further hypothesizes individuals, somehow developed differently expected them, assigned socialized male, develop map corresponds females. (non-binary) cases, stable corresponding typical ‘male’ ‘female’ maps. Jenkins, explains despite deep misgivings extremely non-conforming behaviour misgivings. Insofar applying her, consciously deliberately transgresses presentation, correctly Questions raised ultimately succeeds aims providing plausible non-circular identity’ meet appropriate identity.16 assume account, available plays required adequate That supports claims enough feature worthy (especially cases does sex), simply believing oneself man, woman, non-binary, know practice authoritative respect questions so, womenID, certain forms therefore, (overlapping) womenCL, when comes injustices. Furthermore, view, determining sincere follow thinking delivers classes, whom next ask clarified amended (or indeed both). first reflected senses require changes stands. GRA) interact groups. mechanisms womenCL? UK, significant piece protecting historically marginalized (EA), brought together 116 pieces previous equalities stretching back 1970 Equal Pay Act. nine age; disability; reassignment; marriage civil partnership; pregnancy maternity; race; religion belief; sex; orientation. places duties public bodies policies practices, reasonable adjustments direct indirect except circumstances ‘a proportionate means legitimate aim’ (for services sexes (section 26) 27), sex-segregated sporting competition 195)). includes requirements monitor potential Explanatory Notes clarify ‘references mean man share men, women’, any age’, age’.17 terminology (male/female) suggest traditional ‘(adult) work (with ‘adult’ qualifier removed simplicity ensure references cover children). English established female.18 complicated somewhat, provisions GRA, enable people, specifically defined circumstances, ‘Gender Certificate’ (GRC) reflects Until recently, unclear sex—that (female) acquired obtaining certificate. (13 decision judicial Women clarifies sex: GRC sex.19 May 2021 (latest figures), fewer 6,000 GRC, estimates likely ‘small number people’ wishing discussed parliament.20 clarification purposes ‘legal sex’, exceptional overwhelmingly tracks change, resulted GRC. (Indeed, reasons why amendments self-ID, particularly (Scotland) Bill, contentious. discuss IV.) now, let us assumption closely returning later effects opening this. ‘womanCL’ ‘sexually subordinate’, upshot EA, picking picks regularly, This, impractical, cruel, wrongheaded, nature ‘discrimination perception’, unnecessary, explain below. Speaking practically, dependent ‘passes’ raises determined. Should treated enough? whom, often? These make cruel ‘pass’ was fact envisaged (described ‘transexuals’) privacy disclose cross-gender history key pillar motivation offered presenting changing marker ‘out’ themselves transitioned proving variety purposes.21 Nevertheless, quite rightly requirement ‘passing’ recognition. Aside consequences amending problematic such. Certainly thinks gender-non-conforming mistaken EA. issues delineating category, reason exists wrongheaded replace ‘perceived sex’ recognize harms resulting society's devaluing due person's devalued group. Elizabeth Barnes Matthew Andler example disability. They note hide disabilities perceives disabled. societies continue devalue disabled by, failing accommodations disabilities, hidden disability harmed things built environment fails ‘Simply put’, tell us, ‘the constraints enablements go beyond others treat you perceived’.22 considerations true suffered occur perceive negative Caroline Criado Perez numerous examples ‘default male’ science engineering led environment, technologies, medicines ignore bodies.23 contributed data gap’ failure contexts, disadvantaged failings differences medicine. likewise equality-impact assessments example) policy people. elegant solution characteristics, perception’ individual possesses characteristic. Thus, create new subordinate’ perception agrees womenCL) protection, retention equality welcomed. reassignment proposing undergo, undergoing undergone process process) purpose reassigning physiological attributes sex.24 (actual perceived) reassignment. adults demonstrate Panel diagnosis dysphoria; lived years prior application GRC; intend until death. Individuals receipt issued certificate, reflecting al