Trans Gender Justice: Critical Reflections on the Conceptual Limitations of English Law, Implementation of the Law, and the Relationship with Social Progress

Authors: Divya Jalan Published date: 15-07-2016 Status: Published

Whilst trans issues have been explored in political, medical, queer theory and US legal literature, the UK’s legal literature remains more limited. The Gender Recognition Act 2004 (GRA) marked a shift in the debate on trans issues from academia to implementation. This article attempts to go some way in filling the legal lacuna by engaging in a socio-legal analysis of English law’s ability to provide gender justice by giving full legal recognition to all trans and non-discriminatory access to rights based on this. First, drawing upon the foundations provided by feminist discourse on what constitutes ‘sex’, ‘gender’, ‘male’ and ‘female’, we can analyse the historical development of English law. Secondly, the law is historically conceptually limited by its privileging of sex over gender and its affirmation of the male/female binary as epitomised in Corbett v Corbett. Thirdly, an analysis of the GRA and its relationship with key civil law legislations demonstrates that English law remains conceptually limited because of an incomplete shift from sex to gender and reaffirmation of the binary. Finally, a reflection upon the relationship between social progress, the law’s theoretical limitations and implementation leads to the conclusion that, although the law contributes to trans gender justice, social change is fundamental to shaping more conceptually progressive legislation that can itself have a transformative role on society and the law’s effective implementation through social compliance. Neither the law nor public policy and politics may be neglected when contemplating greater gender justice for trans individuals. Keywords: transgender, Corbett v Corbett, Gender Recognition Act 2004, Equality Act 2010.

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COPYRIGHT: © The UK Law and Society Association, 2016