“I Don’t Think That’s Something I’ve Ever Thought About Really Before”: A Thematic Discursive Analysis of Lay People’s Talk about Legal Gender

Abstract

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

Introduction to Special Issue: Decertifying Legal Sex—Prefigurative Law Reform and the Future of Legal Gender

“…Touch, fragility, preciousness, wildness, getting burned, and prematurity emerge as powerful tropes. Elizabeth Peel and Hannah Newman's (2023) article also takes up ideas of legal consciousness. Approaching gender (including in the discursive form of 'sex') as a normative order loosely analogous to law, they examine attachments and views on gender/sex and its reform prompted by asking interviewees about decertification.…”

“…While much of it has played out in social and mainstream media, feminist organisations, and institutions, such as universities, during the period of our research a series of legal cases were also brought challenging, in different ways, moves towards self-identification and the institutional diminution of sex-based approaches to the category 'woman'. 7 The qualitative data which Emerton (2023), and Peel and Newman (2023) analyse in their articles on legal and gender consciousness, respectively, need to be read within this light. People's concerns about decertification were very strongly influenced by the conflict taking place over gender classifications and self-identification.…”

“We’re not there yet” but it’s not “pie-in-the-sky”: Legal Consciousness, Decertification and the Equality Sector in England and Wales

“…Building on the foundational work of Sarat (1990) and Silbey (1992, 1998), a substantial body of socio-legal research has explored the everyday life and power of law (on the varieties of legal consciousness research, see, e.g., Halliday 2019). Since complicated and expanded, 11 Ewick and Silbey's original classification of legal consciousness into 'before the law', 'with the law' and 'against the law' continues to have relevance for contemporary research, including research relating to sex, gender and sexual orientation (see, e.g., Cowan 2020;Harding 2010;Hull 2016;Peel and Newman 2023). Briefly, a 'before the law' orientation regards the law with respect and reverence and as rational, impartial, objective and majestic.…”

“…"We're not there yet" Interviewees' consensus that society wasn't ready for decertification dovetailed with the project's findings on lay people's views (Peel and Newman 2023). Two aspects of readiness were raised, first, the level of public understanding and support for such radical law reform, and second, the status of gender equality in society.…”

Decertifying Gender: The Challenge of Equal Pay

“…Other articles in this special issue address different aspects of our work on decertification. The reasons for considering decertification as a legal reform have been considered at length elsewhere but include eradicating complex and humiliating legal gender reclassification processes for transgender people, unpicking the effects of binary legal categories of male/female in excluding non-binary people from key rights, recognising plural constructions and experiences of gender, and addressing law's role in substantiating conservative conceptions of sex and gender (Cruz 2004;Katyal 2017;Clarke 2018;Cannoot and Decoster 2020;Holzer 2020;Venditti 2020;Peel and Newman 2023). Concerns that have been expressed about such a reform include that it could mask inequalities instead of addressing them; it could undermine or make it harder to regulate single-sex spaces ; it might disproportionately impact people already disadvantaged on other grounds; and it could undermine accuracy and consistency in data collection (Cooper et al 2022).…”