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

Abstract

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.

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.

What legal and political mechanisms are in place that help to improve the lot of women_CL? 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 ‘woman_CL’ 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, women_CL) 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 women_CL in the UK, by protecting against discrimination on grounds of both actual and perceived sex, so that even those members of the class of women_CL who are not legally female can be protected in UK equality law via the protected characteristic of sex.

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 all of their legal documents can be in line with their gender identity (the sex marker on other documents, including passports, can already be changed on the basis of self-declaration alone). There is currently no provision for legal recognition of gender identities outside of the binary sex categories. There is also currently no provision for self-identification of gender: those requesting a GRC must offer evidence including a diagnosis of gender dysphoria. Hence, current provision in England and Wales allows recognition of the gender identities of only a subset of trans people: adults identifying as either male or female, with a diagnosis of gender dysphoria.25

In 2018, the UK government held a consultation on proposals to reform the 2004 GRA, including the proposal to move to a system of self-identification of gender (self-ID) in England and Wales, and questions on whether to recognize gender identities outside of the male/female binary. The consultation became ‘a focal point for a heated and often toxic debate’.26 Following the consultation, in 2020, the UK government confirmed it had dropped the proposals to move to a system of self-ID, focusing instead on measures to streamline the existing gender recognition process. By contrast, as noted above, the Scottish government recently passed its own GRRB, which removes the need for a medical diagnosis and instead allows gender to be recognized on the basis of sincere self-declaration, as well as opening up gender recognition to 16–17 year-olds. The UK government's move to abandon proposed changes to the GRA has been criticized by the UK parliament's Women and Equalities Select Committee (WESC), which recommended, in its recent report on the Reform of the Gender Recognition Act, the removal of a diagnosis of gender dysphoria in order to obtain a GRC, ‘moving the process closer to a system of self-declaration’.27 Whether, and how, to amend the 2004 GRA as it applies in England and Wales remains a live and controversial issue.

However, I will argue, matters are not so simple. Indeed, feminists who take seriously Jenkins's point that feminism should advocate for both women_CL and women_ID should have serious concerns about the mechanism by which existing UK legislation recognizes gender, and the effects of extending gender recognition by this mechanism to a wider class based on self-ID. Extending the GRA so that individuals can change their legal sex (to male, female, or non-binary) on the basis of self-identification, as per recent proposals and in line with Yogyakarta Principle 31, carries a danger of eroding protections of women_CL as provided by the 2010 EA.

As noted above, in English law, ‘sex’ has historically been understood in biological terms to mean the state of being male or female. ‘Gender’, as introduced in the 2004 GRA, is rather confusingly used in that Act apparently interchangeably with ‘sex’.31 However, despite appearances, the 2004 GRA does not challenge the legal precedent of Corbett v. Corbett 1971 with its biological understanding of sex. Rather, it can be thought of as introducing a legal fiction of legal sex. That is, when the law says that ‘the person's sex becomes that of a man’, it neither means that a biological change has occurred, nor that the previous biological understanding of sex in law has been overturned, but that a person whose acquired gender is male is treated in most circumstances ‘as if’ their sex is that of a man.32

Given that sex and gender identity are different things, it is perhaps unfortunate that the mechanism for legal recognition of gender identity in law (for that subset of trans people who are eligible to have their gender identities recognized) is via the legal fiction that an individual with a GRC has changed their sex. This mechanism makes it difficult to recognize non-binary identities, as well as raising issues about the interaction of gender recognition with sex-based protections. The legal academic Stephen Whittle, who was involved in discussions relating to the drafting of the 2004 GRA, claims that it was no oversight, but in fact a matter of deliberate choice that the GRA conflates sex and gender, using the two terms interchangeably, to make clear that the process of gender recognition was indeed intended to amount to a mechanism for legal change of sex. Indeed, Whittle and Turner argue, in the 2004 GRA ‘The sex/gender distinction, (where sex normatively refers to the sexed body, and gender, to social identity) is demobilised both literally and legally’.33

Whereas traditionally it has been thought that sex precedes and determines gender—with sex at birth (male/female) determining which social role (man/woman) one is expected to occupy—Whittle and Turner argue that the effect of the GRA is to change the meaning of ‘sex’ in law in a way that reverses this traditional order: ‘Sex in this sense is determined by gender identity—the social role that one chooses to take’.34

Whittle and Turner's understanding of the GRA is controversial: the legal reading outlined above—viewing the acquired gender of a person with a GRC as their sex is a legal fiction that does not overturn the precedent of Corbett v. Corbett—is more standard. Nevertheless, I will argue, the effect of treating an individual's acquired gender in almost all contexts as if it is their sex, when combined with self-identification of gender, carries with it a clear danger of collapsing the two important categories of sex and gender identity into a single identity-based category for almost all practical purposes, as per Whittle and Turner's understanding. Given that the EA protected characteristic of sex as it currently stands serves to protect the interests of women_CL, feminists who care about protecting the interests of both women_ID and women_CL should be very concerned about the interaction of the GRA and the EA if a move to self-ID is accepted.

The difficulty shows itself when we look at how the GRA interacts with the EA. Bearing in mind that a person with a GRC whose acquired gender is female acquires the legal sex of a woman, including the right to be treated as if she is biologically female in almost all circumstances, the question arises as to how to determine when and whether a person whose legal sex is that of a woman should be treated just as if she is female, for EA purposes.

Recall that the EA allows for single-sex and separate-sex services where it can be argued that such provision is a proportionate means to a legitimate aim. The EA also places requirements on equalities monitoring in relation to the protected characteristics. And the EA provides the legal framework for assessing discrimination claims: to bring a claim of discrimination under the EA on the grounds of possession of a protected characteristic, a claimant needs to make the case that an (actual or hypothetical) individual who is comparable to them in respect to other characteristics, but who differs from them with respect to the protected characteristic in question, has been, or would be, treated more favourably then they have been. Given the recent (December 2022) clarification that ‘sex’ in the EA should be read as ‘legal sex’, what are the consequences of this judgement for the protections afforded via the EA protected characteristic of sex, if we open up gender recognition to a wider group of individuals via a move to self-identification? Should a trans woman with a GRC, whose legal sex is female, be considered female for the purposes of single- and separate-sex provision, for providing appropriate comparators for discrimination claims, and for data collection?

How, then, might we legislate in a way that protects both women_CL and women_ID (as well as protecting trans people from discrimination)? One way of preserving protections for women_CL, in keeping with precedent in the existing GRA, would be to be explicit in pointing out in EA guidance that ‘legal sex’, as acquired by a GRC, is not the same as ‘sex’ as understood biologically in UK law (via Corbett v. Corbett), and to offer clear guidance accompanying the EA as to situations where biological sex, as opposed to ‘legal sex’ might reasonably be considered to be the relevant feature (for example, cases where discrimination on the grounds of gender reassignment may be permitted in order to restrict a service to females who have not become legally female via the gender recognition process). This distinction is appealed to in the specific exceptions written into the original GRA (which specify cases, such as in so-called ‘gender-affected sports’, where ‘persons whose gender has become the acquired gender under this Act’ are to be treated in line with their previous gender, rather than their acquired gender).51

This approach might allow specification of particular cases where sex rather than gender identity is held to be what is at issue (such as when it can be argued that distinguishing between acquired and birth sex in a particular context is a proportionate means to a legitimate aim, to use the terms of the EA), albeit, as noted above, guidance is sorely needed as to how the proportionate/legitimate test is to be applied. An example where such a case might come into play is the measure proposed by Finlayson et al. to guard against male prisoners who are not trans abusing self-ID in order to access the female estate.52 They suggest treating those whose acquired gender is female differently from natal females in this context, by requiring that prisoners who self-identify as female ‘demonstrate some history of expressing a female gender identity’, as well as carrying out a risk assessment, before housing them in women's prisons.

This solution (distinguishing between birth sex and legal sex as acquired by means of the gender recognition process, with clear guidance as to when birth sex rather than legal sex takes precedence) has some merits. Nevertheless, given that all legal documents (including birth certificates) reflect the legal sex of individuals with a GRC, the solution is a messy one, and one that, given the recent clarification that ‘sex’ in the EA is to be read as ‘legal sex’, could only be applied in specific exceptional cases.

In line with the recent WESC recommendation that legislation be reworded to clearly identify when an Act is referring to natal sex, legal sex, and gender, and in keeping with Jenkins's identification of the needs of women_CL (which I have argued are well protected via the protected characteristic of sex) as equally important to those of women_ID, a neater solution would be to introduce two separate legally protected characteristics. These would be of sex (understood biologically as per Corbett v. Corbett) and gender identity (which, if self-ID is accepted, would be determined by sincere self-declaration). Doing so would allow for clarity in the EA exceptions, which could state clearly that while, when it comes to so-called ‘single-sex’ provisions, it is desirable that individuals be allowed to access provision in accordance with their gender identity, provision can be offered on the basis of sex rather than gender identity where this can be shown to meet the proportionate/legitimate test (albeit guidance remains necessary in how this test is to be applied).

Having two separate markers would also allow for accurate data collection where this is necessary to discover and track inequalities as they relate both to sex and to transgender identity (where someone is counted as having a transgender identity if their gender identity differs from their sex), as well as allowing straightforwardly for relevant distinctions to be made between comparator individuals when it comes to discrimination cases. Moreover, separating sex from gender identity would allow for the straightforward recognition of gender identities outside of the sex binary, as well as protection against discrimination for those whose gender identity differs from their sex.

Might the proposed separation of sex from gender identity in law serve to harm transgender individuals who, after all, have previously lobbied successfully for the legal right to change their sex? At least two issues arise. The first concerns privacy. By keeping two separate markers of ‘sex’ and ‘gender identity’, trans people would be easily ‘outed’ wherever they are asked to declare both, as people whose gender identity does not match their sex. I have argued that it is important that, in statistics monitoring, trans status should be identifiable so that we can track inequality as it relates to trans status. But as with other sensitive personal information, privacy can be ensured by other means, for example by only requesting this information where it is considered necessary to do so, and through careful storing of individuals' personal data.

I note here also that the requirement of privacy might be a relic of outdated attitudes to being trans: why should an individual be encouraged to hide the fact that their gender identity differs from their sex? The important project of depathologizing our understanding of transgender identities (which stands behind recent moves away from requiring medical diagnoses as a route to gender recognition and towards self-identification of gender) in part involves encouraging societies to become more comfortable with the idea that an individual's gender identity might be different from their sex. With greater progress in this direction, the felt need to hide the fact that one's gender identity differs from one's sex should be reduced.

Second is the issue of access to single-sex provision. It is true that by distinguishing sex from gender identity, being recognized as the gender with which one identifies would not bring an automatic right to access services that are restricted to the sex that corresponds to one's gender identity. However, if the interpretation I have noted above of the EA exceptions in relation to single-sex provision is correct, then neither, in case of services at least, does the existing process by means of which gender is recognized as legal sex. The EA allows permitted discrimination to occur on the grounds of gender reassignment (even where individuals are in possession of a GRC), drawing a distinction between acquired and natal sex in the provision of services where doing so meets the proportionate/legitimate test. In practice, rights of access to spaces need not change in a system that recognizes gender identity separately from sex. We would, however, be assisted with clearer language in which to conduct discussions about whether, in a given circumstance, it is proportionate/legitimate to offer provision strictly on grounds of sex.

In the UK context, I have argued that we made a wrong turn in conflating gender identity with sex in the 2004 GRA, one that had negligible impact when gender recognition was restricted to a very small number of people, but the impact of which could be much more substantial under a system of self-identification of sex such as that recently approved by the Scottish parliament. I have argued that feminists who, like Jenkins, care about both women_CL and women_ID should resist the combination of self-ID with the existing mechanism for recognizing gender identity as legal sex. Instead, I have argued for the creation of two separate legal categories, of sex and gender identity, and for the tracking of statistics in relation to both of these categories so as to identify and respond to inequalities both as they relate to sex and to transgender status.

Insofar as mechanisms for legal recognition of gender are similar in other jurisdictions, in recognizing gender identity as sex, and insofar as other jurisdictions adopt gender self-identification, this example has relevance more broadly. And, in fact, although my focus has been on UK equality legislation, it is clear these conditions do apply more widely. As noted above, the push in the UK to replace sex with self-identified gender has its roots in Principle 31 of the Yogyakarta Principles, which holds that, while ideally neither sex nor gender should be part of one's legal personality, if sex or gender information is registered, this should be done on the basis of self-identity alone. That is, Principle 31 advocates exactly the combination of gender self-identification with the conflation of gender identity with legal sex that, I have argued, causes problems in UK legislation with protecting the rights of women_CL.

If Jenkins is right, then, that feminists should be equally concerned with women_CL and women_ID, it follows that feminists should resist recent proposals to combine self-identification of gender with legal systems that conflate gender identity with sex. Instead feminists who wish to recognize self-identified gender as a politically important category should support a clear separation of sex from gender identity in law. To the extent that YP + 10 is held up as the gold standard for trans rights, by advocating the conflation of legal sex with self-identified gender, Principle 31 sets trans rights in clear conflict with the rights of women_CL. Given that women_CL and trans people both suffer under conditions of patriarchy, rather than following the Yogyakarta recommendations, it would be preferable for both groups to campaign for separate recognition of sex and gender identity, and resist the conflation of these two important categories.

Earlier versions of this article were presented in 2018 at the Department of Philosophy at the University of Sussex, in 2019 at the MANCEPT workshop on Gender and Self-Identification, and in 2020 to the CEU Department of Philosophy colloquium. I am grateful to audiences at those events, and also to the Practical Philosophy group at York, for their comments and engagement. I am grateful to Sophie Allen, Rosa Freedman, Holly Lawford-Smith, Audrey Ludwig, Martin O’Neill, and Kathleen Stock, for detailed comments on various drafts, and to two anonymous reviewers for this journal, as well as Robert Goodin as editor, for very helpful comments in preparing the final version.

None relevant.

There are no potential conflicts of interest relevant to this article.

The author declares human ethics approval was not needed for this study.