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

Abstract

Drawing on 38 in-depth, qualitative interviews, this article explores how people working in the equality sector in England and Wales view and use the current law around sex and gender, and how they imagine law’s future, particularly potential decertification, where the state would withdraw from certifying and regulating a person’s sex/gender. Whilst situated in the bureaucratic strand of the literature, the paper also contributes to wider legal consciousness studies. This literature has generally focused on people’s relationships to law in terms of domination, alienation and game-playing. Drawing on idioms and the language of touch, the paper unpacks the way in which equality actors talked about law not as remote or alienating, but as close and familiar; not as oppressive, but as “precious” and hard-won. Some also regarded law as a place of safety in unsafe times. These proposed ‘attached to law’ and ‘protective of law’ strands of consciousness enrich and extend Ewick and Silbey’s classic ‘before the law’ narrative. The findings are also useful for critical legal and feminist scholarship. Combined with the equality sector’s pragmatic and tactical use of law to problem-solve, this close and protective orientation towards law reproduces its hegemony. The paper concludes by exploring a recurrent refrain that, in relation to decertification, “we’re not there yet” and that gender equality would need to be achieved before decertification would “fly”.

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

“…Taking up this theme, Robyn Emerton's (2023) article draws on decertification as a speculative law reform proposal to explore the legal consciousness of equality governance workers. At the heart of her discussion are the idioms about law and law reform that surfaced when workers were asked their views about abolishing legal gender status.…”

“…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.…”

“…They worried that decertification would demote gender as a state policy target, masking gender-based inequalities so that they no longer seemed to exist. Robyn Emerton's (2023) article explores the anxiety expressed by some we interviewed who feared decertification would make things worse for women. Several research participants suggested formal decertification should only be introduced once gender equality had been accomplished, not in advance of it.…”

“…In their articles, and Emerton (2023) consider views on the use and revision of sex and gender categories among feminist service providers, local government, and other bodies. The roundtable discussion led by Smith et al (2023) reflects on similar practices in other jurisdictions.…”

“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

“…In the analysis section we focus on the construction of talk about the impact of legal gender on everyday lives and decertification specifically (see also Emerton 2023 for a discussion of equality governance professionals' perspectives on this topic). Because of this we draw minimally on the survey data collected (utilising relevant descriptive statistics only) and foreground the interview talk as this lends itself much better than survey data to a detailed focus on the how as well as the what produced by members of the public about legal gender.…”