Abstract‘The Future of Legal Gender’ project has assessed the potential implications for feminist legal scholarship and activism of decertifying sex/gender. Decertification refers to the state moving away from officially determining or registering sex/gender. This article explores the potential impact of such moves on equal pay law and gender pay gap reporting. Equal pay and gender pay gap reporting laws provide an important focus for the project because they aim to address structural dynamics associated with persistent pay inequality that women experience (...) across occupations in the United Kingdom. These legal measures illuminate gendering as a large-scale social problem widely understood to operate structurally and systemically. What effect, then, could decertifying sex/gender have on the law and conceptual power of equal pay? Might decertification undermine the structure of equal pay law, with all hard-won gains it has brought for women? Or is it possible to imagine that decertification could accompany a more inclusive and effective legal architecture for equal pay? (shrink)

This article examines three divergent constructions about the salience of legal gender in lay people’s everyday lives and readiness to decertify gender. In our interviews (and survey data), generally participants minimised the importance of legal gender. The central argument in this article is that feminist socio-legal scholars applying legal consciousness studies to legal reform topics should find scrutinizing the construction of interview talk useful. We illustrate this argument by adapting and applying Ewick and Silbey’s (1998) ‘The Common Place of Law: (...) Stories from Everyday Life', ‘before’, ‘with’ and ‘against’ typology to interview talk about legal gender, and critique their cognitivist approach by offering a constructionist alternative. In our analysis, we offer a detailed discursive explication of three key legal consciousness themes. These themes offer a balanced representation of a dataset problematically ‘skewed’ towards sex-based rights feminist perspectives, namely that ‘before’ legal gender is an anti-decertification account, decertification would be risky for natal females; a ‘with’ legal gender construction is neither for nor against decertification per se, though the impact of decertification is produced in accounts as limited and unimportant; and ‘against’ legal gender is a pro-decertification classification, as not abolished legal gender is constructed as harmful to already marginalised groups. In concluding, we explore the reasoning for the lack of readiness for decertification currently, and return to the value of examining the construction of lay discourse about legal matters as talk is a form of social action. We suggest that applying discursive analysis to themes in legal consciousness studies enables a refocusing on the how rather than purely the what of divergent legal consciousnesses, and that this approach is a fruitful addition to feminist socio-legal studies. (shrink)

When Feminist Theory: From Margin to Center was first published in 1984, it was welcomed and praised by feminist thinkers who wanted a new vision. Even so, individual readers frequently found the theory "unsettling" or "provocative." Today, the blueprint for feminist movement presented in the book remains as provocative and relevant as ever. Written in hooks's characteristic direct style, Feminist Theory embodies the hope that feminists can find a common language to spread the word and create a mass, global feminist (...) movement. (shrink)

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. (shrink)

This article returns to Simone de Beauvoir’s philosophical oeuvre in order to offer a way of thinking beyond contemporary feminist divisions created by ‘gender critical’ or trans-exclusionary feminists. The ‘gender critical’ feminist position returns to sex essentialism to argue for ‘abolishing’ gender, while opponents often appeal to proliferated gender self-identities. I argue that neither goes far enough and that they both circumscribe utopian visions for a world beyond both sex and gender. I chart how Beauvoir’s ontological, ethical and political positions (...) can be used to overcome the material/cultural, sex/gender bind that the contemporary divide perpetuates. I outline Beauvoir’s ‘ambiguous’ non-foundational ontology that attends to both the cultural origins, and material effects, of both sex and gender, and to the extent that humyns are fundamentally social. After outlining Beauvoir’s definition of freedom as purposive action, I then outline how the existence of the humyn-made and intersubjectively-upheld ‘situations’ of both sex and gender delimit this, urging feminists to return to the lost question of eradicating both. I use the utopian impulse in Beauvoir to argue that an ethics of reciprocity is an alternative mode of understanding the self and others. Beauvoir also calls for a political strategy that I call a ‘utopian realism’ that I apply to the contemporary divide. A way forward that is attentive to the concerns of both positions is the pragmatic use of identity politics that is nonetheless mindful of identity’s limits, alongside Beauvoir’s proto-intersectional vision of solidarity politics based not on identity but on a position of alterity and shared political strategy. Ultimately, I use this to argue that feminism would do better to unite around a shared commitment to challenging alterity, rather than further contributing to it. (shrink)

In this article, the author argues that we need to conceptualize gender as a social structure, and by doing so, we can better analyze the ways in which gender is embedded in the individual, interactional, and institutional dimensions of our society. To conceptualize gender as a structure situates gender at the same level of general social significance as the economy and the polity. The author also argues that while concern with intersectionality must continue to be paramount, different structures of inequality (...) have different constructions and perhaps different influential causal mechanisms at any given historical moment. We need to follow a both/and strategy to understand gender structure, race structure, and other structures of inequality as they currently operate while also systematically paying attention to how these axes of domination intersect. Finally, the author suggests we pay more attention to doing research and writing theory with explicit attention to how our work can indeed help transform as well as inform society. (shrink)

The concept of hegemonic masculinity has influenced gender studies across many academic fields but has also attracted serious criticism. The authors trace the origin of the concept in a convergence of ideas in the early 1980s and map the ways it was applied when research on men and masculinities expanded. Evaluating the principal criticisms, the authors defend the underlying concept of masculinity, which in most research use is neither reified nor essentialist. However, the criticism of trait models of gender and (...) rigid typologies is sound. The treatment of the subject in research on hegemonic masculinity can be improved with the aid of recent psychological models, although limits to discursive flexibility must be recognized. The concept of hegemonic masculinity does not equate to a model of social reproduction; we need to recognize social struggles in which subordinated masculinities influence dominant forms. Finally, the authors review what has been confirmed from early formulations and what needs to be discarded. The authors suggest reformulation of the concept in four areas: a more complex model of gender hierarchy, emphasizing the agency of women; explicit recognition of the geography of masculinities, emphasizing the interplay among local, regional, and global levels; a more specific treatment of embodiment in contexts of privilege and power; and a stronger emphasis on the dynamics of hegemonic masculinity, recognizing internal contradictions and the possibilities of movement toward gender democracy. (shrink)

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)

Only one year after the global wave of protest movements and revolts—starting with the ‘Arab Spring’, then, subsequently, the Indignados movement and Occupy- our appreciation of such movements turned sour. The aim of this contribution is to question the predominantly sceptical and defeatist discourse on these movements. One element central to many defeatist discourses on the 2011 movements, is the way in which a lack of demonstrable ‘outcomes’ or ‘successes’ is retrospectively ascribed to them. Therefore, an alternative approach should be (...) formulated, which would allow us to recognise the significant or valuable aspects of these movements and their practices, without downplaying them as ‘unsuccessful’ or ‘failures’ altogether. Pierre Rosanvallon’s concept of ‘counter-democracy’ and Hardt and Negri’s perspective of a ‘Multitude’ will be evaluated as alternative approaches to current political movements. Although they are meritorious, both perspectives do not go far enough and need further articulation. The notion of ‘prefiguration’, originally derived from contemporary anarchist discourse, could be beneficial to this endeavour. After defining and deepening this concept from an anarchist perspective, it will be applied to one particular context: the occupation of Tahrir Square in Cairo, during the 2011 revolution in Egypt. As will be concluded, in its application this concept of ‘prefiguration’ could teach us more about the recent wave of protest movements in general, and could help us to formulate a different approach to such movements. (shrink)

Drawing on 38 in-depth, qualitative interviews, this article explores how people working in the equality sector in England and Wales view and use the current law around sex and gender, and how they imagine law’s future, particularly potential decertification, where the state would withdraw from certifying and regulating a person’s sex/gender. Whilst situated in the bureaucratic strand of the literature, the paper also contributes to wider legal consciousness studies. This literature has generally focused on people’s relationships to law in terms (...) of domination, alienation and game-playing. Drawing on idioms and the language of touch, the paper unpacks the way in which equality actors talked about law not as remote or alienating, but as close and familiar; not as oppressive, but as “precious” and hard-won. Some also regarded law as a place of safety in unsafe times. These proposed ‘attached to law’ and ‘protective of law’ strands of consciousness enrich and extend Ewick and Silbey’s classic ‘before the law’ narrative. The findings are also useful for critical legal and feminist scholarship. Combined with the equality sector’s pragmatic and tactical use of law to problem-solve, this close and protective orientation towards law reproduces its hegemony. The paper concludes by exploring a recurrent refrain that, in relation to decertification, “we’re not there yet” and that gender equality would need to be achieved before decertification would “fly”. (shrink)

Bonnie Honig invigorates debate over the politics of refusal by insisting that withdrawal from unjust political systems be matched with collective action to change them. Historical and fictional characters from Muhammad Ali to the Bacchants of ancient Greek tragedy teach us how to turn rejection into transformative efforts toward self-governance.

This article considers what the implications of decertification would be for single-sex services such as domestic and sexual violence support. Some reform options attached to decertification could (re)allocate authority away from the state to organisations or individuals to determine gender criteria. What would the consequences of such re-allocation be in determining eligibility to receive or access services or excluding people on the basis of a characteristic protected under equality law? Engaging with this in the context of domestic and sexual violence (...) support service provision raises a number of questions. Firstly, does the existence of gender-based violence and/or of the effects it produces require a stable category in order to address them? What benefits may emerge from providing single-sex spaces that could not be replicated in other settings? And finally, what criteria of exclusion and inclusion are currently used to determine access to spaces beyond legal gender status? (shrink)

In this roundtable discussion, early-career researchers working in the field of law, gender, and sexuality discuss international and trans-national developments to legal gender. ‘The Future of Legal Gender’ research project focused on the legislative framework of England and Wales to develop a prototype for decertification. The domestic legislation, however, was situated within a wider international context throughout the project. This roundtable discussion, therefore, provided an opportunity for reflection on the transnational issues raised by decertification, with a particular focus on developments (...) arising in the jurisdiction(s) studied by the early career researchers. The roundtable began with a brief outline of these recent developments before moving to an open discussion on key themes including the value of reform on wider society, changes on-the-ground by non-state actors, and alternative processes for tackling gender inequalities without certifying legal gender. The online conversation took place on 28 June 2021 and has been transcribed and edited for continuity, clarity, and referencing. (shrink)

This article explores the challenge of developing a feminist law reform proposal to decertify sex and gender based on research conducted for the ‘Future of Legal Gender' project. Locating the proposal to decertify within a do-it-yourself, prefigurative approach to law reform, the article asks: Can a law reform proposal be both instrumental and radical? Can a proposal take shape as a viable legislative text and as a more subversive intervention to unsettle and reimagine gender’s relationship to law? This article explores (...) this at two levels. First, it considers the ontological challenges of developing a controversial law reform proposal in terms of its realness (or fictiveness), contours, and temporality, turning to ‘slow law' as a credible way of approaching radical reform. Second, it explores the design-based challenges of legal prototyping—foregrounding questions of legitimacy, participation, and purpose, which arise in designing a decertification law. At the heart of this discussion is the relationship between representation and enactment—between what a proposal presents and what its presentation does and does not accomplish. (shrink)