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)

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)

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)

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)