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

2023; Wiley; Volume: 31; Issue: 2 Linguagem: Inglês

10.1111/jopp.12295

1467-9760

Mary Leng,

Political Philosophy and Ethics

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