This paper challenges a view of the Gender Recognition Act 2004 as involving an unequivocal shift from the concept of sex to the concept of gender in law’s understanding of the distinction between male and female. While the Act does move in the direction of gender, and ostensibly in an obvious way through abandoning surgical preconditions for legal recognition, it will be argued that the Act retains and deploys the concept of sex. Moreover, it will be argued that the concept (...) of sex retained is not merely an anatomical understanding, but sex in a biological sense. In this respect the Gender Recognition Act can be viewed as embodying a tension between gender and sex. Further, it is contended that this tension is explicable in terms of irresolution of contrary legal desires to reproduce the gender order and to insulate marriage and heterosexuality from homosexuality in the moment of reform. (shrink)

This paper argues, first, that the legal construction of transsexualism is a matter of interest, not only to members of the trans community, but to all students of gender, including feminists. The paper then proceeds to explain and analyse, using feminist perspectives, key aspects of the Gender Recognition Act 2004 in the light of the recent caselaw concerning the rights of trans persons. The 2004 Act, it is argued, is a conservative move, which attempts to deny the threat transsexualism poses (...) to the binary system of gender, by instigating a system to formally ‘recognise’ only men and or women. However, the way in which the Act constructs the public/private divide and the mind/body relation carries potential for legal recognition of subject positions which may in a variety of ways be ‘beyond’ the binary system that is currently orthodox. The paper can as such be read as a case study in the legal (re)construction of gender, the gender/sex relation, and the widespread tendency to construct gender conservatively. (shrink)

In the cases of Goodwin v. U.K.and I. v. U.K. the European Court of Human Rights held the U.K. Government to be in breach of Articles 8 and 12 of the European Convention for denying certain rights and entitlements, particularly the right to marry, to post-operative transsexuals. This article argues that although on some level these are welcome decisions, they are also conservative and recuperative in that they seek to shore up traditional binarist ideas of gender and sexuality. The article (...) concludes, however, that the Court's conservatism is problematic in a number of ways; and that it may be most profitable to read these cases as an invitation to imagine further and more profound challenges to the old order. (shrink)