If the State Decertified Gender, What Might Happen to its Meaning and Value?

Abstract

As jurisdictions reform gender identity laws to accommodate transgender and intersex people, this article speculatively explores a more fundamental shift: eliminating state law's role in determining and assigning gender status altogether. Adopting a feminist perspective, we explore what the meaning and effects of comprehensively reforming legal gender might be in terms of gender's constitution as a socio-legal property, differentially recognised and protected by diverse but unequal bodies. Our discussion proceeds along two intersecting paths. The first concerns the different classificatory methods which could enable state law, without assigning gender, to continue to regulate gender identity decisions, thereby allowing state law to remain involved in tackling gender discrimination. The second concerns the changing form gender might take in conditions where state law withdraws its allocative function. These paths converge in a final discussion which considers what legal and political effects might follow from gender becoming a property that is individually and collectively cultivated.

Towards an adventurous institutional politics: The prefigurative ‘as if’ and the reposing of what’s real

“…48 Yet, a more fundamental question remained unasked, even as it became tacitly invoked by the move towards self-determination and the growing gender-neutrality of statutory law: Are there good reasons for people to continue to be legally gendered, issuing from the sex registered at birth? This ‘decertification’ question (Cooper & Renz, 2016) is at the heart of a three-year collaborative research project on the Future of Legal Gender (FLaG). 49…”

Of Mines, Mining, and Imagining: Rights without Society?

“…Applying thoughtexperiment methodology to think through what would happen if gender were 'decertified' (not legally assigned at birth), Cooper and Renz trace a careful line through a discussion fraught with controversy and animosity. 105 They illustrate the abstruse and compound ways in which state regulation determines gender for all, and, significantly, that decertifying gender would not (and could not) remove the state 'from regulating gender statuses and identities altogether'. 106 Cooper and Renz show that identity is at once something that is authentically held -'a propertied attachment' -but also something that reifies individualism and can, although need not, re-establish problematic conceptions of societal roles and structures.…”

Governing Legal Embodiment: On the Limits of Self-Declaration

“…40 As they were not, self-declaration failed to address trans and intersex people's embodied concerns. In different circumstances, self-declaration might form part of a wider movement toward the 'depathologisation' (Theilen 2014;Davy et al 2018), or 'decertification' of gender status (Cooper and Renz 2016). In Denmark, however, authoritative medical discourses around trans phenomena have been left unchallenged, and problems in gaining access to health care remain.…”