Abolishing legal status of sex would rob women of sex-based rights and protections – Susan Dalgety

Challenging ideas are always worthy of consideration. Even the ones that seem so outrageous that it’s hard to take them seriously, without laughing.

After all, when women first started arguing for equal rights, most men – and many women – reacted in horror. Affording women and men the same privileges and responsibilities in society was surely against God’s law.

It took nearly 140 years from when Mary Wollstonecraft wrote A Vindication of the Rights of Women to full universal suffrage in 1929, and a further 40 years for the Equal Pay Act, before the law started to catch up with the idea that men and women are created different, but equal.

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And it took the second-wave feminist movement, from the late 1960s onwards, to argue for and win women’s sex-based rights, such as legal abortion, safe single-sex spaces and greater protection against sexual abuse.

But there is one idea so ridiculous, so breathtakingly stupid that it really should never have seen the light of day. Earlier this month, a group of academics published a report that examines the pros and cons of abolishing legal sex.

The study ponders the question of whether a person is legally recognised as male or female is something to “hold on to”, or whether it should be abolished to allow “greater diversity in self-expression”.

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The study is not a poorly researched dissertation by a young post-graduate, provocative for effect and doomed for a fail mark. It is the result of four years of research, funded by the Economic and Social Research Council, with a respected law professor from King’s College London in the lead. It’s a serious piece of academic inquiry, or at least has been treated as such.

The nature of sex and gender is increasingly being debated (Picture: Drew Angerer/Getty Images)The nature of sex and gender is increasingly being debated (Picture: Drew Angerer/Getty Images)
The nature of sex and gender is increasingly being debated (Picture: Drew Angerer/Getty Images)

The project carried out 200 interviews with a range of people, from trade unions and local councils to service providers and NGOs, as well as a public survey and a series of focus groups with law and policy experts.

And while the report stopped short of making a definitive recommendation, it went to great pains to outline the benefits the researchers believe abolishing legal sex status would bring.

These include the aforementioned diversity in self-expression, as well as greater legal parity with other social inequalities such as race. If there is no legal sex, the report argues, then those people who want to change their sex can do so without “legal burden”.

And Professor Davina Cooper, the research lead, pondered whether the government could tackle inequality “without fixing and defining people’s membership in a category”.

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“We live at a time of ongoing inequalities and violence based on gender. Does having a legal sex and gender help to address these inequalities and violence?” she asked in a press release marking the report’s publication.

She went on, “does it reinforce the notion that the sex a person is registered with at birth is important in shaping the life they ought to lead?”

Stop right there, professor. A person’s sex, whether they are male or female, does shape the life they lead and has done since Homo sapiens stood up to walk.

Erasing women as a sex category in the eyes of the law will not stop women being raped. It will not end the exploitation of women where, nearly two generations after the Equal Pay Act was introduced, women in Scotland’s public sector can earn less than three-quarters of what their male colleagues get.

Pretending there is no legal difference between the sexes will allow men to be incarcerated in women’s prisons as a matter of their choice, and it will ruin sport, because if there is no legal sex, there can be no “women’s” categories. If you cannot afford women legal status, then society cannot offer us legal protection. It is as simple as that.

It would be easy to dismiss this study as nothing more than another example of self-indulgent, out-of-touch academic research which will end up in the “bizarre” file along with papers such as Do Woodpeckers Get Headaches? (University of California) and The Possibility of Unicorns (King’s College London), but that would be to ignore the cultural earthquake that is happening among the so-called progressive elite in Scotland.

Holyrood’s Equalities Committee is currently hearing evidence on whether people should be allowed to change their sex from age 16, without any checks, as part of its scrutiny of the government’s Gender Recognition Reform Bill.

And deep in the bowels of the Scottish civil service, a working group is considering whether the government should do more to achieve equality for non-binary people. Its somewhat cryptic minutes suggest a report, with recommendations, is due soon.

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I doubt if I am alone when I ask what non-binary means in the context of sex? The dictionary definition is “not restricted to two things”, while LGBT charity Stonewall says it is an umbrella term for people whose gender identity doesn’t sit comfortably with ‘man’ or ‘woman’.

Both definitions sit very comfortably with Professor Cooper’s carefully considered view that inequality could be tackled “without fixing and defining people’s membership in a category”. So, is it really unthinkable that sometime soon the Scottish Parliament will be debating the abolition of legal sex status? Ten years ago, I would have said yes. Today, anything is possible.

Next month, Professor Cooper will give a lecture on her research at Edinburgh University. The title of her talk is, “Abolishing legal sex: The challenges, risks and pleasures of prefigurative law reform”.

I look forward to hearing her explain what pleasures there will be for women and girls in a world where their sex-based rights and protections have been sacrificed in the name of progress.

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