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    Legal sex status: the attitudes of non-binary people towards reform in England and Wales, by Mollie Gascoigne

    Posted by ccld201

    4 October 2023

    Human rights actors are increasingly highlighting the negative impact that legal non-recognition has on non-binary communities. However, the possibilities for, and implications of, various reform options in England and Wales remain underexplored. It is imperative that scholars, lawyers and policymakers fully understand these options so that reform achieves its desired aims and legal uncertainty is minimised. In my recently published Legal Studies article, I draw on survey responses and interviews with non-binary people to explore different reform options available and how non-binary people weigh up the perceived advantages and disadvantages. In this blog post, I outline some of the key themes from the article which is also available in full (open access) here.

    The prospect of reforming legal sex status has attracted considerable attention from policymakers, members of the public, mainstream media, scholars and advocates. Transgender (trans) and non-binary people have to meet various medical and administrative conditions under the Gender Recognition Act 2004 (‘the 2004 Act’) before being able to obtain legal recognition as either ‘male’ or ‘female’. There is no provision in England and Wales for individuals to obtain recognition of a non-binary identity. The extensive medical and administrative requirements, and lack of non-binary recognition, have been heavily criticised since the introduction of the 2004 Act.

    After a lengthy consultation process, in 2020 the UK Conservative Government rejected substantive reform to the 2004 Act. Reform to address the difficulties non-binary people face was also notably rejected before the consultation period commenced. This is despite increasing social and legal visibility of non-binary identities, culminating in several high-profile UK court challenges in recent years. This has included cases concerning equality and discrimination legislation in the workplace, asylum claims and non-gendered passport markers. There is no robust data on the number of non-binary people living in the UK, though 7,410 of respondents to the Government’s nationwide LGBT Survey identified as non-binary. This represents over half of the total trans sample.

    Advocates and scholars have called for the introduction of non-binary recognition which is often presumed to mean introducing a third sex option (usually an “X” marker). However, it could also encompass the introduction of multiple additional sex options, like “X,” “N/A,” and/or “I” markers. Meanwhile, others have criticised introducing non-binary recognition as failing to interrogate the presumed (and mistaken) need to certify sex on the birth certificate.

    Whether debating the prospect of non-binary recognition or removing sex from the birth certificate, there is little empirical data on non-binary people’s preferences towards these different options. It is imperative that non-binary voices are heard in order to prevent reform from being inadvertently exclusionary or paternalistic. I therefore asked non-binary people for their views on the current legal recognition system and three main reform options, namely introducing a third sex option, introducing multiple additional sex options and removing information about sex from the birth certificate (also known as decertification). There were 276 participants including 140 non-binary and 136 binary trans respondents. Participants had a range of ages though most were under 25 years old. Participants were currently living in, or from, the UK.

    I found that non-binary participants were highly critical of the current system which was seen as exclusionary and burdensome. Non-binary people described the impossible dilemma they faced in conforming to the current binary, medicalised system under the 2004 Act, or relinquishing any form of recognition.

    All three reform options – introducing a third or multiple options, and decertification – attracted support from non-binary people. Introducing some form of non-binary recognition (not specifying whether a third or multiple option/s) was a key priority compared with reform to other medical and administrative requirements of the current system. Over 70% of people I interviewed said that introducing an option other than male or female would make them more likely to apply for formal recognition. This is notably higher than the number of participants who said that reform to administrative and medical requirements would make them more likely to apply (less than 40%). With the Government apparently interested in increasing the number of applicants for legal recognition, these findings show that introducing non-binary recognition could be one way to achieve this aim.

    More specifically, introducing a third sex option attracted the greatest support from non-binary participants, followed by multiple additional sex options and then decertification. It was notable that zero participants opposed the introduction of a third sex option, with 95% of participants being supportive and 5% uncertain of the prospect. However, interestingly, when asked which of these options was ‘best’ on a comparative basis, decertification was ranked best, followed by introducing multiple sex options and then a third sex option. Through interviews with non-binary participants, it appeared that many saw the third sex option as sufficient for most but imperfect given it did not address the taken-for-granted practice of certifying sex on the birth certificate. Nevertheless, while decertification was superior in this regard, it was also seen as less realistic compared to introducing non-binary recognition and possibly posing a greater risk of causing uncertainty for other laws and administrative systems.

    This research shows that non-binary people broadly support reform, but each reform option was seen to offer unique possibilities and pose various challenges. Future discussions of reform require further direct engagement with this community to ensure reform achieves its intended aim of improving the lives and experiences of non-binary people. Meanwhile, policymakers, legal scholars and professionals alike also need to consider the implications of reform to other practice areas depending on the unique issues raised by each option. Nevertheless, disruption to other laws and administrative systems does not minimise the need for reform. Instead, given the various challenges heard in UK courts in recent years, reform would arguably minimise the disruption already being caused by a binary and burdensome legal system. To read the full article (open access) please click here

    Dr Mollie Gascoigne is a Trainee Solicitor at Foot Anstey LLP and she obtained her PhD from the University of Exeter.


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