By Prof Joanne Conaghan (University of Bristol Law School)
The recent debate on gender recognition reform, as played out in the press and on social media, has been painful to behold. With passions running high, much of the discourse has been marked by a lack of regard for the viewpoints of others, on occasion spiralling into professional and even personal abuse online. That the pursuit of equality should unleash such unkind sensibilities is troubling, particularly in a feminist context in which values such as inclusion, empathy, and respect for different standpoints have generally commanded wide respect.
What lies behind the apparent deadlock in debate between transgender activists and ‘gender critical’ feminists? On the one hand, there is the perfectly proper concern of trans people to have access to a legal process of gender recognition which they do not experience as invasive, cumbersome, and pathologizing. On the other, there are misgivings expressed by some in the feminist community that a legal regime of gender recognition, understood as ‘self-declaration’ and operating in various forms in Argentina, Belgium, Brazil, Chile, Columbia, Denmark, Ireland, Malta and Norway, will weaken the hard-won gains of decades of feminist activism particularly with regard to securing women’s access to safe sex-segregated spaces such as rape crisis centres and women’s refuges. The fact that existing equality legislation already provides a level of protection allowing same-sex service providers to deny access to transgender individuals where they can show this is a proportionate means of achieving a legitimate aim (for example, a counselling service might reasonably be concerned that sexually abused women will be less likely to attend group counselling if ‘male-bodied’ trans women are also in attendance) does not seem to have allayed these concerns, though surely they should, particularly as the Government has made clear that they have no plans to change equality law.
Gender critical feminists have also expressed concern about the perceived elevation of gender identity rights over those of other legally protected grounds, the assumption being that equality categories, such as race, religion, sex, gender reassignment etc, should always be accorded the same level of consideration. Yet, such strict adherence to sameness of treatment as between grounds flies in the face of how the various inequalities interrelate: some legally protected grounds are referentially reliant upon others (it is difficult to understand gender reassignment without invoking some notion of sex); while others are actively implicated in constructing categories of disadvantage and/or stigma (consider, for example, how religion has contributed to the construction of homosexuality as unnatural and/or immoral). If intersectionality theory has taught us anything it is that inequality is a messy and complex phenomenon. It is not a grid of straight lines or mathematical forms but a scramble of cross-cutting, interlocking relations, processes, and structures in which the ‘protected grounds’ feature not as discrete strands of disadvantage but as deeply entangled dimensions of social and political order. Moreover, because these grounds work through, with, and across one another to produce distinct inequality outcomes, it is rarely the case that they are evenly aligned in their specific operations. It follows that, other than abstractly, inequality categories generally manifest lopsidedly, producing inequality experiences in which the protected grounds feature unevenly, often hierarchically, and sometimes, directly collide.
Is this what has happened here? Have trans and women’s rights simply collided? It is useful at this point to highlight the sex/gender dichotomy and the way it has been deployed by gender critical feminists to put a formal distance between ‘women born’ (sex) and trans women (gender). Most feminists are familiar with the sex/gender dichotomy which emerged in second wave feminism as a way of distinguishing between aspects of women’s experience which were biologically based (pregnancy, menstruation and the like) and those which were culturally imposed (for example assumptions that women were more caring, less suited to particular kinds of work etc). Second wave feminists invoked the sex/gender distinction to argue that much of the discrimination to which women were subject was socially constructed not biologically determined; it could not therefore provide a defensible basis for treating women less favourably than men. This strategy worked up to a point but ran into trouble when it came to advancing arguments for accommodating pregnancy in the workplace as it left open the possibility for arguing that because, in some fundamental biological respects, women were different from men, social arrangements which reflected those differences (too often to women’s disadvantage) were not necessarily discriminatory.
While some feminists were preoccupied with surmounting the impasse posed by the sameness /difference debate, other feminists from mainly minority communities (black and lesbian) began to question the construction of sex and gender emerging from mainstream feminism. The difficulty with feminism, these voices persuasively affirmed, was that it essentialised notions of womanhood in a way which corresponded with white, middle class, heterosexual, female experience but was inattentive to the experiences of minority women who struggled to have their perspectives aired and shared in feminist discourse : ‘Ain’t I a woman?’ asked black feminist scholar, bell hooks, echoing the words of 19th century African-American feminist and abolitionist, Sojourner Truth.
These critical insights yielded a welcome turn away from essentialised appeals to an idealized womanhood, accepting that the categories ‘woman’ and ‘man’ were socially constructed and capable of operating ideologically. Alongside intersectionality theory, developed in the first instance by Kim Crenshaw, and promoting an understanding of inequality as multidimensional rather than unidimensional (and therefore not simply or easily captured by the deployment of discrete categories of disadvantage in isolation from one another), a new feminist sensibility developed which was far more open to the complexity of inequality, the fluidity of identity, and the role and limits of gender as a category of critical analysis.
Within this new theoretical landscape, the distinction between sex as biological and gender as socio-cultural came under renewed feminist scrutiny with the view emerging that sex, as much as gender, was socially and culturally imbued . This well-known reconceptualization of biological sex as socially and culturally contingent is quite at odds with second wave feminist reliance on a sex/gender distinction corresponding with biology and culture respectively. It is therefore surprising to see it invoked so uncritically in the gender recognition debate. The point is not to deny the significance of biology and more specifically corporeality to sex. Bodies exist, and their forms diverge in sexually recognizable patterns. Nevertheless, how we read those bodies, how we classify, and interpret them, is another matter altogether. In his sweeping historical study of sex, Thomas Laqueur tracks the various ways in which men and women’s bodies have been apprehended historically. He shows that pre-modern conceptualizations posited the female body either as a part of the male body (as in the Biblical account of Eve’s creation from Adam’s rib) or as a defective version thereof (as in Aristotle’s dismissal of the female body as a ‘mutilated male’). A conception of male and female bodies as fundamentally distinct from one another, what Laqueur characterizes as a ‘two-sex’ rather than ‘one-sex’ model, did not really become dominant until the eighteenth century. There is also anthropological evidence of cultures adopting a ‘three-sex’ (or more) classification of bodies.
The point here is not to suggest that sex is purely the product of social and cultural construction or that real differences between men and women’s bodies do not exist. Rather it is to emphasize that how we know or apprehend bodies is inevitably socially and culturally mediated. Thus, asserting a sharp and definitive line between sex and gender – as between nature and nurture – is misleading as it tends to suppose that what falls into the former category (sex/nature) is biologically fixed and determined and what is assigned to the latter (gender/nurture) is socially and culturally negotiable. The result is to shield from scrutiny the social and cultural dimensions of understandings of nature and biology.
In a world in which new medical technologies combine with greater scientific understanding of neurological and cognitive processes, the traditional distinction between mind and body is being rapidly rethought. One difficulty with the sex /gender dichotomy is that it reasserts Cartesian dualism by reducing bodies to mere ‘matter’, outside the realm of meaning-making processes. Another difficulty with adhering to a strict distinction between sex and gender is that it facilitates a narrow interpretation of sex which can be deployed to exclusionary ends. This is exactly what gender critical feminists have done by constructing womanhood to align exclusively with women born. This is a social and political construction and perfectly contestable. Indeed, even in the legal domain, the narrow conception of sex to which gender critical feminists adhere is not borne out: if we were to accept that the meaning of sex in the Equality Act was confined to biologically based discrimination, and did not encompass, for example, the discriminatory application of socially derived gender stereotypes (an argument deployed by more than one recalcitrant defendant in the early days of the Sex Discrimination Act 1975), it would provide very poor relief to women suffering discrimination.
A feminism that cannot embrace trans women, that invokes an exclusionary definition of womanhood to shut them out, is not a feminism with which I wish to be associated. Nor is it feminism as I have known and lived it; a feminism which is disposed to be open, provisional, self-reflective and at times self-critical. It has never been a perfect feminism and has often relied on the insights of marginalized groups to advance and enrich it. As it should now.
 See Equality Act 2010, s 29 and Schedule 3, para 28 and accompanying explanatory notes. I do not consider persuasive the argument made by some that possession of a gender recognition certificate somehow negates the application of these provisions.
 bell hooks, Ain’t I am Woman? Black Women and Feminism (Pluto Press 1987).
 See especially Judith Butler, Gender Troubles (Routledge, 1990).
 T Laqueur, Making Sex: Body and Gender from the Greeks to Freud (Harvard University Press, 1990).