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

Abstract

This article explores the political conflict over reforming how sex and gender categories are used in British law, focusing on the speculative legal proposal to ‘decertify’ sex and gender. Three interconnected arguments are advanced. First, diverging views on decertification are both about and seek to marshal competing perspectives on the value and risks of formalization and its undoing. Second, understanding these views, and decertification more generally, benefits from an account of the formal and informal as interconnected movements of (un)settling, (un)acknowledgement, system (un)intelligibility, and (non‐)deference which remains irreducible to the presence or absence of state and law. Third, while formalization can pin down responsibilities and entitlements, it can also fix unequal and exclusionary status relationships. Focusing on positive action in the final part of the article, I consider how movements of formalization and informalization interrelate and the choices available, in conditions of decertification, if positive action is to counter gender inequality.

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

“…Are protections from discrimination or positive action more effective for sex, than for informally inhabited categories such as sexual orientation, because sex has a formal legal status (also recognising the singling out of sex in certain contexts, such as Equality Act 2010, s104( 7), which makes it permissible to create sex-based electoral shortlists if the sex in question is underrepresented)? 6 Research participants had different responses to this question (see also Cooper 2022). Interestingly, the legal academics we spoke with tended to be more ambivalent about the difference legal status made compared to others, particularly feminist NGOs, who were often much more certain that pinning down category membership enhanced equality protections.…”

“…The progressive and critical orientation of our research means it is equality-based arguments for retaining formal gender and sex status (rather than conservative ones) that we mainly attended to, and these surface in this special issue. Advocates of retention argued that stable, trackable, standardised categories facilitate measures to counter institutionalised forms of inequality through positive discrimination and affirmative action (see Cooper 2022Cooper , 2023a. They also argued that the current system enabled sex-specific provision in support of women's safety and dignity (see also Jeffreys 2014); and facilitated essential data collection on women and men's sex-related experiences (Sullivan 2020).…”

Gender-Based Violence Without a Legal Gender: Imagining Single-Sex Services in Conditions of Decertification

“…This would necessitate other definitional approaches such as relying on biological factors, which would of course create evidential challenges. One regulatory option might be that groups whose objectives are explicitly 'equality-seeking' are given greater discretion in setting their membership requirements or the terms on which they provide services (see also Cooper 2023b). Of course this becomes less straightforward in instances where there are competing equality-based interests as is frequently the case when women-only services exclude trans women (Boyle 2011, 510).…”