The Abolition of Sex/Gender Registration in the Age of Gender Self-Determination: An Interdisciplinary, Queer, Feminist and Human Rights Analysis

Abstract

<p><br />It is commonly accepted that gender matters (whether cisgender, transgender/trans*, gender non-binary, genderfluid, gender queer, agender, or other) and many are raising awareness about the fact that gender always seems to matter. That gender matters, and always matters, does not necessarily mean, however, that gender needs to be authenticated or endorsed by the state.</p><p>In fact, based on a feminist and queer reading of human rights, this interdisciplinary article asserts that state-sponsored sex/gender assignment through the practice of sex/gender registration must halt. It argues that mandatory (binary) sex/gender registration disproportionately infringes the emerging right to gender identity autonomy and the right to the legal recognition thereof. Most often, our Western heterosexual cultural system of gender, which posits the existence of two oppositional and complementary gender identities, anchored in so-called natural and binary sex, goes hand in hand with material and discursive forms of violence and entails various forms of unequal power dynamics. Hegemonic in nature, the heterosexual cultural system of gender pervasively regulates many (if not every) aspects of all bodies’ lives and being, including by legal means. The law upholds and certifies that specific gender regime, inter alia, by assigning a sex to individuals at birth (through the registration of a claimed evident, objective, natural element to be found on or in the body by inspection). Policies of mandatory (binary) sex/gender registration therefore constitute the cornerstone of the legalisation of the heterosexual cultural system of gender, which produces not only the conventional feminine and masculine gender identity (i.e. women and men) but also sex (i.e. females and males).</p><p>This article suggests that, as long as the law refuses to go beyond the compulsory male/female (or even male/female/other) framework, it will be complicit in upholding the undesired consequences of the heterosexual cultural system of gender, which affect all persons of whatever gender or physical features. Therefore, undoing remaining forms of global gender injustice, as well as respecting, protecting and fulfilling human rights relating to gender identity, requires the abolishment of sex/gender registration instead of expanding the available gender markers. Indeed, this article finds that current state practices do not pursue a legitimate aim, and even if they do, mandatory sex/gender registration does not pass the proportionality test that is required in the assessment of restrictions of fundamental rights. A human rights analysis of official sex/gender in the age of gender self-determination finds mandatory sex/gender registration to be a disproportionate measure and recommends that states change their current practices. Doing so would be beneficial to cisgender and trans* individuals alike.</p>

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

“…At first glance, decertification offers a way for the state to mitigate the harms that legal gender status causes for those who disidentify with their birth-registered sex and do not see third categories as the solution (see also Newman and Peel 2022). Decertification also challenges the institutionalisation of a heterosexual order anchored in two hierarchically related, ostensibly complementary categories-namely, women and men (Cannoot and Decoster 2020), unsettling the symbolic work, which gender and sex perform as legally designated and enforced distinctions (Clarke 2019). Genderneutral laws may mean that law's enforcement of gendered differences has declined.…”

What does gender equality need? Revisiting the formal and informal in feminist legal politics

“…It facilitates childhood socialization into gender (through agencies such as schools) and gives support to heteronormativity as a sociobiological structure of sex/gender complementarity. 19 Yet, for advocates of reform, the harshest experiences of sex and gender categories confront those whose ascribed sex and gender do not (adequately) fit. 20 In Britain, the primary impetus and focus for reforming how legal sex and gender categories operate, in recent years, has been transgender people's resistance to remaining within the category registered at birth.…”

Pulling the Thread of Decertification: What Challenges are Raised by the Proposal to Reform Legal Gender Status?

“…Rather than abolishing legal gender status, it involves diversifying gender categories to reflect (in more, or less, open ways) people's own self-identifications. Expanding formal gender categories has occurred in several jurisdictions, most commonly through a third category of "non-binary" or "other" for gender registration or documentary purposes (see Cannoot and Decoster 2020;Clarke 2018;Holzer 2018). 7 Here, formal gender identifications are retained in an officially expansive form, while the formalities required for people to move between sub-category headings are typically 6 We use the term "informalisation" to capture legal responses to gender that incorporate destandardisation, selfidentification, lack of formalities, flexibility, and change.…”

“…Despite the momentum towards gender neutral law in countries such as Britain (a move feminists do not read as unequivocally beneficial, as discussed below), registering sex at birth encodes sex as a significant normative distinction; 18 one, as Cannoot and Decoster (2020) also argue, that remains central to the maintenance of heteronormative order. Our starting point is not that abolishing the assignment or registration of sex at birth will end gender-based socialisation, sexual violence, the economic exploitation of feminised workers and carers, or institutional arrangements that take affluent white men as the norm -that would be too easy (see also Waylen 2014).…”