改进、包容和法律承认:关于性别、性别和英国的《性别承认法》

IF 2.9 1区 哲学 Q1 ETHICS
Mary Leng
{"title":"改进、包容和法律承认:关于性别、性别和英国的《性别承认法》","authors":"Mary Leng","doi":"10.1111/jopp.12295","DOIUrl":null,"url":null,"abstract":"<p>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 <i>exacerbate</i> 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.</p><p>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.</p><p>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.</p><p>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.</p><p>Jenkins's proposal is of particular interest, because the result of her ameliorative inquiry is to deliver <i>two</i> separate target gender concepts, and hence two separate (albeit overlapping) concepts of ‘woman’, which she takes to be <i>equally</i> 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 <i>being classed as a woman</i> and <i>having a female gender identity</i>. 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).</p><p>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.</p><p>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.</p><p>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.</p><p>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.</p><p>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).</p><p>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 <i>are</i> 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 <i>conflating</i> gender identity with sex.</p><p>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.</p><p>What legal and political mechanisms are in place that help to improve the lot of women<sub>CL</sub>? 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: <i>age</i>; <i>disability</i>; <i>gender reassignment</i>; <i>marriage and civil partnership</i>; <i>pregnancy and maternity</i>; <i>race</i>; <i>religion or belief</i>; <i>sex</i>; <i>sexual orientation</i>. 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.</p><p>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).</p><p>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</p><p>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.</p><p>If we follow Jenkins in adopting Haslanger's ameliorative account of ‘woman<sub>CL</sub>’ 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, <i>perceived</i> 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.</p><p>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.</p><p>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 <i>perceived</i> 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</p><p>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.</p><p>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 <i>perceived</i> 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 <i>perception</i> that one is female. So if one agrees with Haslanger that the class of those perceived as female (that is, women<sub>CL</sub>) 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<sub>CL</sub> in the UK, by protecting against discrimination on grounds of both actual <i>and</i> perceived sex, so that even those members of the class of women<sub>CL</sub> who are not legally female can be protected in UK equality law via the protected characteristic of sex.</p><p>As a protected characteristic, individuals are protected against discrimination on grounds of (actual or perceived) gender reassignment.</p><p>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</p><p>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.</p><p>However, I will argue, matters are not so simple. Indeed, feminists who take seriously Jenkins's point that feminism should advocate for both women<sub>CL</sub> and women<sub>ID</sub> 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<sub>CL</sub> as provided by the 2010 EA.</p><p>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 <i>v</i>. Corbett <span>1971</span> with its biological understanding of sex. Rather, it can be thought of as introducing a legal fiction of <i>legal sex</i>. 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 <i>most</i> circumstances ‘as if’ their sex is that of a man.32</p><p>Given that sex and gender identity are different things, it is perhaps unfortunate that the mechanism for legal recognition of <i>gender identity</i> 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 <i>sex</i>. 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 <i>gender</i> recognition was indeed intended to amount to a mechanism for legal change of <i>sex</i>. 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</p><p>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</p><p>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 <i>legal fiction</i> that does not overturn the precedent of Corbett <i>v</i>. Corbett—is more standard. Nevertheless, I will argue, the effect of treating an individual's acquired <i>gender</i> in almost all contexts <i>as if</i> 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 <i>sex</i> as it currently stands serves to protect the interests of women<sub>CL</sub>, feminists who care about protecting the interests of both women<sub>ID</sub> <i>and</i> women<sub>CL</sub> should be very concerned about the interaction of the GRA and the EA if a move to self-ID is accepted.</p><p>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 <i>legal sex</i> of a woman, including the right to be treated <i>as if</i> 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 <i>is</i> female, for EA purposes.</p><p>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?</p><p>How, then, might we legislate in a way that protects <i>both</i> women<sub>CL</sub> and women<sub>ID</sub> (as well as protecting trans people from discrimination)? One way of preserving protections for women<sub>CL</sub>, 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 <i>v</i>. 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</p><p>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.</p><p>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.</p><p>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<sub>CL</sub> (which I have argued are well protected via the protected characteristic of sex) as equally important to those of women<sub>ID</sub>, a neater solution would be to introduce two separate legally protected characteristics. These would be of <i>sex</i> (understood biologically as per Corbett <i>v</i>. Corbett) and <i>gender identity</i> (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).</p><p>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.</p><p>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 <i>sex</i>? 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 <i>should</i> 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.</p><p>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.</p><p>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 <i>automatic</i> 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.</p><p>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<sub>CL</sub> and women<sub>ID</sub> 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.</p><p>Insofar as mechanisms for legal recognition of gender are similar in other jurisdictions, in recognizing gender identity <i>as</i> 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 <i>is</i> 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<sub>CL</sub>.</p><p>If Jenkins is right, then, that feminists should be equally concerned with women<sub>CL</sub> and women<sub>ID</sub>, 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<sub>CL</sub>. Given that women<sub>CL</sub> 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.</p><p>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.</p><p>None relevant.</p><p>There are no potential conflicts of interest relevant to this article.</p><p>The author declares human ethics approval was not needed for this study.</p>","PeriodicalId":47624,"journal":{"name":"Journal of Political Philosophy","volume":null,"pages":null},"PeriodicalIF":2.9000,"publicationDate":"2023-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jopp.12295","citationCount":"0","resultStr":"{\"title\":\"Amelioration, inclusion, and legal recognition: On sex, gender, and the UK's Gender Recognition Act\",\"authors\":\"Mary Leng\",\"doi\":\"10.1111/jopp.12295\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"<p>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 <i>exacerbate</i> 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.</p><p>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.</p><p>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.</p><p>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.</p><p>Jenkins's proposal is of particular interest, because the result of her ameliorative inquiry is to deliver <i>two</i> separate target gender concepts, and hence two separate (albeit overlapping) concepts of ‘woman’, which she takes to be <i>equally</i> 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 <i>being classed as a woman</i> and <i>having a female gender identity</i>. 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).</p><p>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.</p><p>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.</p><p>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.</p><p>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.</p><p>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).</p><p>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 <i>are</i> 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 <i>conflating</i> gender identity with sex.</p><p>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.</p><p>What legal and political mechanisms are in place that help to improve the lot of women<sub>CL</sub>? 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: <i>age</i>; <i>disability</i>; <i>gender reassignment</i>; <i>marriage and civil partnership</i>; <i>pregnancy and maternity</i>; <i>race</i>; <i>religion or belief</i>; <i>sex</i>; <i>sexual orientation</i>. 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.</p><p>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).</p><p>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</p><p>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.</p><p>If we follow Jenkins in adopting Haslanger's ameliorative account of ‘woman<sub>CL</sub>’ 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, <i>perceived</i> 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.</p><p>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.</p><p>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 <i>perceived</i> 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</p><p>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.</p><p>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 <i>perceived</i> 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 <i>perception</i> that one is female. So if one agrees with Haslanger that the class of those perceived as female (that is, women<sub>CL</sub>) 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<sub>CL</sub> in the UK, by protecting against discrimination on grounds of both actual <i>and</i> perceived sex, so that even those members of the class of women<sub>CL</sub> who are not legally female can be protected in UK equality law via the protected characteristic of sex.</p><p>As a protected characteristic, individuals are protected against discrimination on grounds of (actual or perceived) gender reassignment.</p><p>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</p><p>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.</p><p>However, I will argue, matters are not so simple. Indeed, feminists who take seriously Jenkins's point that feminism should advocate for both women<sub>CL</sub> and women<sub>ID</sub> 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<sub>CL</sub> as provided by the 2010 EA.</p><p>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 <i>v</i>. Corbett <span>1971</span> with its biological understanding of sex. Rather, it can be thought of as introducing a legal fiction of <i>legal sex</i>. 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 <i>most</i> circumstances ‘as if’ their sex is that of a man.32</p><p>Given that sex and gender identity are different things, it is perhaps unfortunate that the mechanism for legal recognition of <i>gender identity</i> 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 <i>sex</i>. 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 <i>gender</i> recognition was indeed intended to amount to a mechanism for legal change of <i>sex</i>. 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</p><p>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</p><p>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 <i>legal fiction</i> that does not overturn the precedent of Corbett <i>v</i>. Corbett—is more standard. Nevertheless, I will argue, the effect of treating an individual's acquired <i>gender</i> in almost all contexts <i>as if</i> 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 <i>sex</i> as it currently stands serves to protect the interests of women<sub>CL</sub>, feminists who care about protecting the interests of both women<sub>ID</sub> <i>and</i> women<sub>CL</sub> should be very concerned about the interaction of the GRA and the EA if a move to self-ID is accepted.</p><p>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 <i>legal sex</i> of a woman, including the right to be treated <i>as if</i> 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 <i>is</i> female, for EA purposes.</p><p>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?</p><p>How, then, might we legislate in a way that protects <i>both</i> women<sub>CL</sub> and women<sub>ID</sub> (as well as protecting trans people from discrimination)? One way of preserving protections for women<sub>CL</sub>, 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 <i>v</i>. 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</p><p>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.</p><p>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.</p><p>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<sub>CL</sub> (which I have argued are well protected via the protected characteristic of sex) as equally important to those of women<sub>ID</sub>, a neater solution would be to introduce two separate legally protected characteristics. These would be of <i>sex</i> (understood biologically as per Corbett <i>v</i>. Corbett) and <i>gender identity</i> (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).</p><p>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.</p><p>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 <i>sex</i>? 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 <i>should</i> 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.</p><p>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.</p><p>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 <i>automatic</i> 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.</p><p>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<sub>CL</sub> and women<sub>ID</sub> 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.</p><p>Insofar as mechanisms for legal recognition of gender are similar in other jurisdictions, in recognizing gender identity <i>as</i> 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 <i>is</i> 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<sub>CL</sub>.</p><p>If Jenkins is right, then, that feminists should be equally concerned with women<sub>CL</sub> and women<sub>ID</sub>, 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<sub>CL</sub>. Given that women<sub>CL</sub> 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.</p><p>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.</p><p>None relevant.</p><p>There are no potential conflicts of interest relevant to this article.</p><p>The author declares human ethics approval was not needed for this study.</p>\",\"PeriodicalId\":47624,\"journal\":{\"name\":\"Journal of Political Philosophy\",\"volume\":null,\"pages\":null},\"PeriodicalIF\":2.9000,\"publicationDate\":\"2023-03-16\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"https://onlinelibrary.wiley.com/doi/epdf/10.1111/jopp.12295\",\"citationCount\":\"0\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"Journal of Political Philosophy\",\"FirstCategoryId\":\"98\",\"ListUrlMain\":\"https://onlinelibrary.wiley.com/doi/10.1111/jopp.12295\",\"RegionNum\":1,\"RegionCategory\":\"哲学\",\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"Q1\",\"JCRName\":\"ETHICS\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"Journal of Political Philosophy","FirstCategoryId":"98","ListUrlMain":"https://onlinelibrary.wiley.com/doi/10.1111/jopp.12295","RegionNum":1,"RegionCategory":"哲学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q1","JCRName":"ETHICS","Score":null,"Total":0}
引用次数: 0

摘要

参与“改善性探究”项目的哲学家们提供了对社会类别的描述,比如种族和性别类别,他们抛开了理解这些类别目前存在的描述性问题,转而考虑到我们的政治目标,我们应该如何看待这些类别。对于以打击性别不公正为目标的女权主义者来说,字典中对“女性”的定义是“成年人类女性”,从表面上看,几乎没有什么可提供的。如果我们认为性别不公正主要源于父权制压迫,那么将“妇女”和“女孩”理解为压迫的主要目标似乎是合适的,即使事实证明这些阶层排斥了一些人类女性,也包括了一些人类男性。如果我们认为性别不公正也包括不公正地将性别期望和性别类别强加给人们,而不管他们自己对自己的性别理解如何,那么将“女性”描述为“成年人类女性”可能会加剧这种性别不公正,迫使人们进入与其身份相反的性别类别。因此,改进调查的结果往往是建议我们修改对现有概念的描述,以便更好地为我们的政治目的服务。但是,如果在进行了改进性调查后,我们得出结论,认为我们的概念需要修改,我们该怎么办?概念和定义有着哲学之外的生命,据推测,那些确信需要修改的人应该有话要说,在哲学期刊上进行的讨论之外,我们对概念的使用应该发生什么变化。在“妇女”和“女孩”等性别概念和术语的情况下,这些术语具有现有的法律含义和用途。改进调查的自然结果应该是建议修改我们现有的法律类别,以更好地代表我们调查的目标。事实上,近年来,许多司法管辖区一直在努力解决是否修改法律承认性别和/或性别的方式的问题;因此,对于那些参与改进性别概念调查的人来说,这是一个机会,可以为法律改革提供一些切实可行的建议。虽然没有一个州正式签署受日惹原则约束,但它们被视为最佳实践指南。正是在原则31的背景下,我们可以理解英国最近提出的修改2004年《性别承认法》(GRA)的建议(英国政府于2018年咨询了英格兰和威尔士,苏格兰政府于2022年12月通过了苏格兰),以根据原则31的C部分建立性别自决制度,那些参与提供“女性”改良定义的人是否应该就承认合法性别或性别的法律提案发表意见?当然,在一定程度上,这将取决于一个人的改善情况。本文将以Katharine Jenkins2的改进建议为出发点,并考虑一个被Jenkins的改进方法所说服的人应该对性或性别的法律承认得出什么结论的问题。鉴于这是目前英国政治辩论中的一个热点问题,本文以英国立法框架3为中心案例研究,并考虑了现有立法(包括2004年的《性别平等法》和2010年的《平等法》)目前如何保护詹金斯对“女性”的改进定义中目标群体的利益,以及如果我们希望根据詹金斯的分析促进性别公正,如何最好地修改这项立法。然而,考虑到实施日惹31的国际行动的更广泛背景,这一案例研究在英国的经验教训也应该对其他地方产生影响。詹金斯的提议特别令人感兴趣,因为她改进调查的结果是提出了两个独立的目标性别概念,因此提出了“女性”的两个独立(尽管重叠)概念,如果我们的目标是反对基于性别的不公正,她认为这两个概念同样重要,因此,詹金斯的目标概念是被归类为女性和具有女性性别认同。詹金斯的提议之所以与最近关于性别承认的政治辩论有关,是因为通常情况下,对立双方都主张一种性别观念高于另一种(即,广泛基于性别阶级的女性观念高于广泛基于性别认同的观念,反之亦然)。 如果能够提出维护两个群体利益的具体建议(或者至少提供一个框架,在这个框架内,两个群体的利益都可以得到承认,并在冲突的地方保持平衡),那么将这两个概念视为同等重要的出发点就很有意义。即使辩论的任何一方都有许多人会拒绝詹金斯的立场,即“女性”的两个概念同等重要,只要他们的兴趣是确保立法充分照顾到他们喜欢的“女性”,一项表明如何在法律上保护和平衡这两类人的利益的法律提案,可能会为“女性”的单一观点提供妥协。这一提议将以容忍替代性别解释的原则为基础,即使这些解释不被接受,只要双方的主要利益是在一个法律框架中,在任何意义上保护妇女是重要的。然后,我们将首先提醒(在第一节中)詹金斯在女权主义反对性别不公正的斗争中同等重视的“女性”的两个概念,然后(在第二节和第三节中)考虑他们在当前英国立法框架中的代表性(特别是通过2004年的GRA和2010年的EA)。我在第二节中认为,鉴于《EA》禁止基于感知和实际拥有受保护特征的歧视,《EA》中受保护的性别特征充分保护了詹金斯阶级意义上的女性(即那些被观察或想象为女性的人)的利益,尽管根据EA对这一类别的理解,并不是每个在这种基于阶级的意义上被视为“女性”的人都被视为女性。相比之下,第三节指出,英国法律中目前关于性别承认的规定只承认一小部分女性的性别身份,而且也不适合承认非二元性别身份。第四节考虑了如何修订2004年《性别平等法》以引入性别自我识别(英国政府咨询并于最近由苏格兰议会颁布),同时改善那些认定为女性的人在法律上得到承认的情况,然而,这削弱了英国EA对那些被归类为女性的人的现有保护(在詹金斯的意义上)。5第五节提供了一条法律承认性别认同的替代途径,这既符合詹金斯将“女性”这两个概念视为同等重要的目标,也比目前的“自我认同”提案更可取,因为它为承认非二元性别身份和保护所有跨性别者免受基于跨性别身份的歧视提供了一条直接的途径。这篇文章的核心论点是,转向符合《日惹原则》第31条原则C部分的性别自我认同制度,破坏了英国法律中的性和性别认同,破坏了2010年《环境法》提供的重要的基于性别的保护,我认为,该法主要是为了保护女性作为一个阶级,以及使人们难以充分保护自己免受基于跨性别身份的歧视。相反,这篇文章主张在法律上承认两个独立的受保护特征:性别(根据英国现行判例法从生物学上理解)6和性别认同(基于自我认同确定)。在法律中将性别和性别认同分开,可以承认非二元性别认同,并对被理解为性别认同与性别不匹配的跨性别者给予适当的法律承认和保护。它还允许明确讨论是否应该或可以根据基于性别或基于性别认同的线路提供服务(根据现行英国平等立法的允许),而不需要对提供单一性别或单一性别服务采取一刀切的方法。然而,本条主张在法律中增加基于性别的合法类别,这不仅违背了原则31的C部分,也违背了a部分更激进的建议:即各州应完全终止将性别/性别作为个人法律人格一部分的登记。到目前为止,A部分几乎没有被接受,跨性别倡导者通常专注于根据C部分为性别/性别的自我识别提供法律依据,而不是要求撤销性别/性别登记。因此,迄今已有19个国家采用了符合C部分的性别自我认同制度,从2012年的阿根廷开始,最近的一次是2022年12月的苏格兰。 相比之下,采纳A部分建议的热情要低得多,尽管澳大利亚塔斯马尼亚州已经朝着这个方向采取了一些措施,不再在出生证明上记录性别(尽管性别仍然在出生时登记)。ESRC最近资助的一个项目“法律性别的未来”(FLaG)探讨了在英国取消登记的利弊;在他们的最终报告中,项目团队建议取消性别/性别的注册,并将英国EA中受保护的“性别”和“性别重新分配”特征合并为一个受保护的单一“性别”特征,这不是我在这里提倡的一条路线,部分原因是在我看来,“合并”两个重要且重要的不同类别需要保护的危险与更标准的继续记录性行为但基于自我认同的建议类似。然而,对于那些受到排斥主义诱惑的人来说,这篇文章的论点可以被解读为有条件的:如果国家在法律上承认性别,他们应该承认这两个独立的类别(一个是生物学的,一个是自我认同的问题),而不是停留在我们目前不充分的中途之家(一方面是完全注销登记,另一方面是全面单独承认性别和性别认同),只通过将性别认同与性别混为一谈来承认性别认同。Katharine Jenkins提出了“女性”的两个目标概念,一个基于阶级的概念和一个基于性别认同的概念,8认为这两个概念对于女权主义目标来说同样必要。我将在这里简要回顾这两个概念。有哪些法律和政治机制有助于改善女性CL的命运?在英国,保护历史上被边缘化群体的一项重要立法是2010年《平等法案》,该法案汇集了从1970年《同工同酬法案》开始的116多项独立的平等立法。EA确定了九个受保护的特征:年龄;残疾性别重新分配;婚姻和民事伴侣关系;怀孕和生育;比赛宗教或信仰;性别性取向。该法案规定公共机构有义务在政策和实践中考虑这些受保护的特征,包括对拥有受保护特征的人进行合理调整,并禁止基于拥有受保护特征的直接或间接歧视,除非在可以认为歧视是“达到合法目的的适当手段”的情况下(例如,为性别提供单独服务(第26条)和单一性别服务(第27条),或性别隔离的体育比赛(第195条))。该法还包括监测基于受保护特征的潜在歧视的要求。EA的解释性说明澄清了“该法案中提到的具有受保护性特征的人是指男性或女性,男性与其他男性和女性都有这种特征”,其中“男性”被理解为“任何年龄的男性”,“女性”被理解为“任何年龄的女性”。17基于性别的术语(男性/女性)可能表明,在EA中,对女性“(成年)人类女性”的传统理解正在发挥作用(在这种情况下,为了简单起见,删除了“成年”限定词,以确保该法案中对性别的提及也涵盖儿童)英国判例法,在生物学术语中确立了对“性”的法律理解,即男性或女性的状态。18然而,由于2004年《性别平等法》的规定,这一点有些复杂,该法允许一些人在特定情况下,获得“性别承认证书”(GRC),并更改其法定性别,使其不再反映其生理性别。直到最近,还不清楚EA中的性别是被理解为生理性别还是合法性别,也就是说,是否将因获得性别承认证书而获得性别为男性(女性)的人包括在内。然而,苏格兰妇女协会最近(2022年12月13日)在司法审查案件中的裁决澄清了EA中的“性别”应被解读为合法性别,而不是生理性别:也就是说,包括那些拥有与其后天性别一致的GRC的人。19截至2021年5月(最新可用数据),英国拥有GRC的人数不到6000人,与议会讨论的可能“少数人”希望接受该法案条款的估计一致。 20这意味着,尽管最近澄清了EA目的中的“性”意味着“合法性”,但除了极少数例外情况外,EA中的“性别”绝大多数都是生理性的。当然,如果GRA的变化导致更多的人获得GRC,这种情况就会改变。(事实上,这就是为什么2004年GRA引入自我身份的拟议修正案,特别是最近通过的《性别承认(苏格兰)法案》,一直备受争议的原因之一。我在第四节中进一步讨论了这一点。)不过,现在,让我们假设EA中的“性”密切跟踪生物性别,稍后再回到在自我认同的基础上开放性别识别的影响问题。如果我们效仿詹金斯的做法,采用Haslanger对“女性CL”的改良描述,将其视为“性标记下属”,我们可能会认为,这一做法的自然结果应该是倡导改变EA中“女性”的受保护特征,这样,它就不会挑出女性,被认为是女性。然而,这将是不切实际的、残酷的、错误的,而且,鉴于EA提供的保护的性质,即“基于感知的歧视”是非法的,这是不必要的,我将在下面解释。实际上,将一个受法律保护的类别取决于某人是否作为特定性别“通过”,这引发了如何确定这一点的问题。受保护的特征是否应该足够频繁地适用于那些被视为女性的人?由谁,多久一次?这些问题还应该清楚地表明,根据人们是否作为特定性别“通过”而将其归入法律类别的提议具有残酷性。事实上,据设想,2004年《性别平等法案》中改变性别的条款将主要由以后天性别“通过”的个人(在2004年的讨论中被描述为“变性人”)承担,个人不必披露其跨性别历史的隐私需求是提交《性别承认法案》时提供动机的关键支柱,其中包括更改出生证明上的性别标记的规定,这样人们在为各种目的证明自己的身份时,就不再需要“证明”自己已经变性了。除了将“通过”作为跨性别者获得法律承认的要求所带来的残酷后果外,修改EA以使受保护的类别是那些被视为女性的人,这对那些认同女性但并不经常被视为男性的女性来说也是一个问题。当然,没有人认为,在2010年EA中,经常被误认为男性的性别不合规女性不应被视为“女性”,即使我们认识到,人们面临的基于性别的歧视大多是由于他们的感知性别而非实际性别造成的。这是因为,并非所有因社会对特定特征的贬低而产生的歧视或伤害都是由于一个人被视为被贬低群体的一员。Elizabeth Barnes和Matthew Andler以残疾为例很好地说明了这一点。他们指出,有些人成功地隐藏了自己的残疾,以至于没有人认为他们是残疾人。尽管如此,如果社会继续贬低残疾人,例如,未能为残疾人提供合理的便利,那么隐性残疾人仍然会受到建筑环境等因素的伤害,这些因素没有考虑到他们的残疾。”简单地说,“他们告诉我们,”残疾的社会约束和促成因素超出了他人对你的态度或对你的看法。22同样的考虑也适用于性行为。诚然,在父权制条件下,女性所遭受的许多伤害来自于当人们认为她们是女性时发生的直接形式的歧视,但社会对女性的贬低产生的负面影响超出了人们在被视为女性的基础上对待个人的方式。Caroline Criado Perez提供了许多例子,说明科学和工程中的“默认男性”假设是如何导致建筑环境、技术和药物忽视了女性身体的独特需求的。 23鉴于父权制条件下女性的贬值导致了所谓的“性别数据差距”,以及在许多情况下没有考虑到女性身体,平等立法保护所有女性的利益似乎是合理的,而不仅仅是那些经常被视为女性的人,以确保他们作为一个阶层不会因为没有考虑到他们的身体差异而处于不利地位,例如在医学方面。同样,要求平等影响评估(例如)考虑政策提案对女性的影响似乎也是合理的。通过将“性”作为一种受保护的特征,EA做到了这一点。它还有一个优雅的解决方案,可以保护那些因被视为女性而面临歧视的人。对于所有受保护的特征,EA将个人拥有该特征的“感知歧视”定为非法。因此,虽然它并没有按照Haslanger对“女性”的改良定义,创建一个新的“性标记下属”的法律类别,但它确实保护了这一阶层的成员,防止他们因认为自己是女性而受到歧视。因此,如果有人同意Haslanger的观点,认为被视为女性的阶层(即女性CL)在政治上很重要,需要保护,那么在英国平等立法中保留“性”这一受保护的特征应该受到欢迎。在英国平等立法中,“性”作为一种受保护的特征,通过保护英国女性CL免受基于实际和感知性别的歧视,有助于保护其需求,因此,即使是那些在法律上不是女性的女性CL阶层成员,也可以通过受保护的性特征在英国平等法中受到保护。作为一种受保护的特征,个人受到保护,不受基于(实际或感知的)性别重新分配的歧视。2004年的《性别平等法》规定,一些成年人只要向性别承认小组证明他们被诊断为性别焦虑症,就可以被法律承认为他们所认同的性别;在申请GRC之前,他们已经以后天性别生活了两年;他们打算以后天的性别生活到死。收到GRC的个人将获得一份修改后的出生证明,反映他们的后天性别,这样他们所有法律文件上的性别标记都可以与他们的性别身份一致(包括护照在内的其他文件上的性标记已经可以仅根据自我声明进行更改)。目前没有关于在法律上承认二元性别类别之外的性别身份的规定。目前也没有关于性别自我识别的规定:要求GRC的人必须提供证据,包括性别焦虑症的诊断。因此,英格兰和威尔士目前的规定只允许承认一小部分跨性别者的性别认同:被诊断为性别焦虑症的男性或女性成年人。25 2018年,英国政府就改革2004年GRA的提案进行了磋商,包括在英格兰和威尔士转为性别自我认同系统(self-ID)的提案,以及是否承认男女二元之外的性别认同问题。此次磋商成为了“一场激烈且往往有毒的辩论的焦点”。26在2020年的磋商之后,英国政府证实,它已经放弃了转向自我身份识别系统的提议,转而专注于简化现有性别识别程序的措施。相比之下,如上所述,苏格兰政府最近通过了自己的GRRB,该法案取消了医学诊断的必要性,而是允许在真诚的自我声明的基础上承认性别,并向16-17岁的人开放性别承认 岁的孩子。英国议会妇女与平等特别委员会(WESC)批评了英国政府放弃对GRA拟议修改的举动,该委员会在其最近关于《性别承认法》改革的报告中建议,为了获得GRC,取消性别焦虑症的诊断,“使这一过程更接近自我声明制度”,修改适用于英格兰和威尔士的2004年GRA仍然是一个充满活力和争议的问题。然而,我认为,事情并不是那么简单。事实上,那些认真对待詹金斯的观点的女权主义者,即女权主义应该同时倡导女性CL和女性ID,他们应该严重关注英国现有立法承认性别的机制,以及通过这种机制将性别承认扩大到基于自我ID的更广泛阶层的影响。 法律中拟议的性别与性别认同分离是否会伤害跨性别者,毕竟这些人之前曾成功游说获得改变性别的合法权利?至少出现了两个问题。第一个问题涉及隐私。通过保留“性别”和“性别认同”这两个单独的标记,跨性别者将很容易被“暴露”在任何被要求同时声明这两个标记的地方,因为他们的性别认同与他们的性别不匹配。我认为,重要的是,在统计监测中,跨性别身份应该是可识别的,这样我们就可以跟踪与跨性别身份相关的不平等。但与其他敏感的个人信息一样,隐私可以通过其他方式来确保,例如,只在认为有必要的情况下请求这些信息,并仔细存储个人数据。我在这里还注意到,隐私要求可能是对跨性别过时态度的遗留问题:为什么要鼓励个人隐瞒自己的性别认同与性别不同的事实?使我们对跨性别身份的理解去病理化的重要项目(这支持了最近从要求医学诊断作为性别识别的途径转向自我识别性别的举措)在一定程度上涉及鼓励社会对个人的性别身份可能与其性别不同的想法感到更舒服。随着这方面的更大进展,人们认为有必要掩盖一个人的性别认同与性别不同这一事实,这一点应该减少。第二是获得单一性别供应的问题。诚然,通过将性别与性别认同区分开来,被承认为一个人所认同的性别并不会自动带来获得服务的权利,而这些服务仅限于与自己的性别认同相对应的性别。然而,如果我上面提到的关于单一性别提供的EA例外的解释是正确的,那么,至少在服务的情况下,现有的性别被承认为合法性别的程序也不正确。EA允许基于性别重新分配(即使个人拥有GRC)的理由发生允许的歧视,在提供符合比例/合法测试的服务时区分后天性别和出生性别。在实践中,在一个将性别认同与性别分开承认的制度中,进入空间的权利不必改变。然而,我们将获得更明确的语言来进行讨论,讨论在特定情况下,严格基于性别提供条款是否相称/合法。在英国的背景下,我认为我们在2004年的GRA中将性别认同与性混为一谈是错误的,当性别认同仅限于极少数人时,这种做法的影响可以忽略不计,但在苏格兰议会最近批准的性别自我认同制度下,其影响可能会更大。我认为,像詹金斯一样关心女性CL和女性ID的女权主义者应该抵制将自我ID与现有的承认性别认同为合法性别的机制相结合。相反,我主张建立两个独立的法律类别,即性别和性别认同,并跟踪与这两个类别有关的统计数据,以识别和应对与性别和跨性别身份有关的不平等现象。就其他司法管辖区法律承认性别的机制而言,在承认性别认同为性别方面,以及就其他司法辖区采用性别自我认同而言,这一例子具有更广泛的相关性。事实上,尽管我一直关注英国的平等立法,但很明显,这些条件确实适用得更广泛。如上所述,英国推动用自我认同的性别取代性的努力源于《日惹原则》第31条原则,该原则认为,虽然理想情况下,性别和性别都不应成为一个人法律人格的一部分,但如果登记了性别或性别信息,则应仅基于自我认同。也就是说,原则31主张将性别自我认同与性别认同与合法性别混为一谈相结合,我认为这会在英国立法中造成保护女性CL权利的问题。如果詹金斯是对的,那么女权主义者应该平等地关注女性CL和女性ID,因此,女权主义者应该抵制最近提出的将性别自我认同与将性别认同与性混为一谈的法律制度相结合的建议。相反,那些希望承认自我认同的性别是一个政治上重要的类别的女权主义者应该支持在法律上明确区分性别和性别认同。 YP + 10被视为跨性别权利的黄金标准,通过倡导将合法性别与自我认同的性别混为一谈,原则31将跨性别权利与女性权利明确冲突。考虑到女性CL和跨性别者都在父权制的条件下受苦,而不是遵循日惹的建议,这两个群体最好都争取对性别和性别认同的单独承认,并抵制将这两个重要类别混为一谈。这篇文章的早期版本于2018年在苏塞克斯大学哲学系发表,2019年在MANCEPT性别与自我认同研讨会上发表,2020年在CEU哲学系学术讨论会上发表。我感谢参加这些活动的观众,也感谢约克实践哲学小组的评论和参与。我感谢Sophie Allen、Rosa Freedman、Holly Lawford Smith、Audrey Ludwig、Martin O'Neill和Kathleen Stock对各种草案的详细评论,感谢本杂志的两位匿名审稿人以及编辑Robert Goodin在准备最终版本时提供的非常有帮助的评论。无相关。本条不存在潜在的利益冲突。作者宣称这项研究不需要人类伦理的批准。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Amelioration, inclusion, and legal recognition: On sex, gender, and the UK's Gender Recognition Act

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 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.

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 womenCL and womenID 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 womenCL 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 womenCL, feminists who care about protecting the interests of both womenID and womenCL 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 womenCL and womenID (as well as protecting trans people from discrimination)? One way of preserving protections for womenCL, 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 womenCL (which I have argued are well protected via the protected characteristic of sex) as equally important to those of womenID, 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 womenCL and womenID 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 womenCL.

If Jenkins is right, then, that feminists should be equally concerned with womenCL and womenID, 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 womenCL. Given that womenCL 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.

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来源期刊
CiteScore
4.10
自引率
5.60%
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17
期刊介绍: The Journal of Political Philosophy is an international journal devoted to the study of theoretical issues arising out of moral, legal and political life. It welcomes, and hopes to foster, work cutting across a variety of disciplinary concerns, among them philosophy, sociology, history, economics and political science. The journal encourages new approaches, including (but not limited to): feminism; environmentalism; critical theory, post-modernism and analytical Marxism; social and public choice theory; law and economics, critical legal studies and critical race studies; and game theoretic, socio-biological and anthropological approaches to politics. It also welcomes work in the history of political thought which builds to a larger philosophical point and work in the philosophy of the social sciences and applied ethics with broader political implications. Featuring a distinguished editorial board from major centres of thought from around the globe, the journal draws equally upon the work of non-philosophers and philosophers and provides a forum of debate between disparate factions who usually keep to their own separate journals.
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