If we look at the UK government’s 2018 consultation paper on reform of the Gender Recognition Act we see that gender is defined as ‘often expressed in terms of masculinity and femininity, gender refers to socially constructed characteristics, and is often assumed from the sex people are registered as at birth.’  Thus, do we immediately enter the world of indefinite definitions that create uncertainty as to their meaning and a tortuous journey to understand how it all is supposed to hang together in some coherent way.

In the document, a legally recognised gender is meant to allow replacement of a supposedly erroneous recording of sex on the birth certificate, although it cannot be the ‘right’ one because gender is not sex and is not defined as sex. The individual is entitled ‘to a new birth certificate issued with an updated sex marker’, and according to the definition of the Full Gender Recognition Certificate, this ‘shows that the holder has satisfied the criteria for legal recognition in their acquired gender.’  So, although it is a ‘sex marker’ it is not the actual sex of the individual, which is observed at birth.

Like so many other aspects of this question, as we shall see, sex is both central and to be displaced.

What it is displaced by is not clear, and certainly not by the above definition.  We are told that ‘gender’ is sometimes expressed in particular terms but not what it is that is being expressed.  This invites the question, what other expressions does it have that might lead us to understand what it is?  Perhaps this is explained by the definition of ‘Gender expression’, which is ‘a person’s outward expression of their gender. This may differ from their gender identity or it may reflect it.’  In which case the expression of gender that is supposed to be core to the definition of gender may not actually be a person’s ‘gender identity.’ 

The definition of gender goes on to say that ‘it refers to socially constructed characteristics’, which tells us that this is not a natural entity, like sex, which is biological, but is a social construction, but again does not tell us what it is that has been constructed.  What social constructions are we being referred to?  If it is ‘femininity’ and ‘masculinity’, why is this not stated, although it can’t be these because these are just some expressions of it and these, we have been told, may not reflect a person’s gender identity.  If conceived as social norms, of behaviour, presentation etc., it doesn’t make much sense to refer to individuals in terms of a social norm, which is a feature of society and not of individuals.

In any case, we are not told what ‘femininity’ and ‘masculinity’ are.  These might be understood to refer to the characteristics of males and females, not to their natural attributes but to social ones that have been attached.  Could there be references to some notions of what ‘femininity’ and ‘masculinity’ are or to concrete social practices?  Both, however, vary by time and place and are not like sex, from which we are told we might assume a person’s gender, which is immutable.  Gender, therefore, is something very different from sex, considered on even the most minimum basis, and gives rise to doubts as to how it could be a substitute for it.

Of course, these questions are easily answered if it asserted that ‘femininity’ and ‘masculinity’ are often seen as expressions of one’s sex but not its substance and that socially constructed characteristics are often placed on the sexes, which is why we can often assume them from a person’s sex.  This however would not assist the project of replacing sex with gender.

The definition of Gender identity is ‘a person’s internal sense of their own gender. This does not have to be man or woman. It could be, for example, non-binary.’  So, if gender refers to socially constructed characteristics and gender identity is an internal sense of these, gender identity must derive from social characteristics that have been internalised.  If this is the case, gender identity cannot be innate and cannot exist at birth since at this stage of human development such characteristics as masculinity and femininity have not been perceived.  Since they vary by time and place, this also raises the question how something claimed to be innate, being inherent in the essential nature of someone, and from birth, can vary by time and place (unlike someone’s sex).

Nevertheless, this is the ground upon which the designation of one’s sex through a new ‘sex marker’ based on ‘gender’ is made, and of the political demands made by Gender Identity ideology. 

The uncertainty is increased when we are told that a gender can not just be either a man or a woman but ‘non-binary’, which is further defined as; ‘an umbrella term for a person who identifies as in some way outside of the man-woman gender binary. They may regard themselves as neither exclusively a man nor a woman, or as both, or take another approach to gender entirely. Different people may use different words to describe their individual gender identity, such as genderfluid, agender or genderqueer.’

What is meant by ‘identifies as’?  Is it a way of stating that a person is, for example, saying I am “neither a man nor a woman” or saying, “I am both a man and a woman’’?   If it is more or less the same as this, how does this make sense? 

How can gender identity, which refers to someone’s internal sense of their gender, which refers to socially constructed characteristics, refer to entities that do not exist, such as a person that is not a man or a woman?  Does this then mean that ‘socially constructed characteristics’ are, or can include, ideas or conceptions that have no material reality?  Are there any limits to the ideas constructed?  In what sense, and in what way, can someone saying they are, for example agender, be considered, and therefore treated, differently to someone claiming to be of the other sex (if these different genders are to be taken as socially significant)?

And what if the claim to be non-binary is really a political statement, in what way can the concept of gender and gender identity suppliant that of sex and its corporeal reality if such statements are also, or really, statements of political belief –  a political identity?

We are told that the Gender Recognition Act 2004: is’ an Act of Parliament that allows transgender people to gain legal recognition of their acquired gender, so long as that gender is a man or woman’, which lets us know that the law will not recognise something which does not exist, i.e. a person that is neither a man or a woman or a person that is both.  And we also don’t need to seek guidance on what the legal status is of the other genders.  This, however, leaves open the question what sort of thing ‘gender’ is, that can include things that cannot exist but is also something that can legally replace sex, which obviously does exist, for some purposes. 

We are not told what is meant by a ‘person’s internal sense of their own gender’.  What is meant by ‘sense’; is it feeling, belief, understanding, perception or knowledge?  Why should a person’s expression or statement of these be legislated as true, and subject to legal obligation by the state?  What other claims by a person of belief etc. are unequivocally accepted and acted upon by the state? Particularly when this ‘sense’ can also include things that do not make sense – like not being either a woman or a man or being both at the same time?

The definition of Gender Identity as a person’s internal sense of their own gender, is the basis of an ‘Acquired gender’, and ‘ The Gender Recognition Act 2004 describes this as the gender in which an applicant is living and seeking legal recognition. It is different from the sex recorded at birth and is instead, the gender the individual identifies with. It could be man or woman.’  Since both ‘gender’ and ‘gender identity’ do not require gender presentation or gender expression it is unclear how the ‘gender the individual identifies with’ could always be verified.  To identify ‘with’ something is not the same as identifying ‘as’ something (ignoring what exactly identifying as something can actually accomplish or entail).

In any case, what does it even mean to live ‘in’ a gender that is in some way different from your sex?  How can anyone live outside of or in some way different from what their body dictates, a body which is sexed and which determines so much of life and existence, even whether you are able to exist at all?  It is an elementary fact, understood by everyone, that life cannot exist outside the body because the functioning body is life.  To live ‘in’ some thing, and through this thing, is to live in a (sexed) body.

One does not live in femininity, for example, or in socially constructed characteristics, and social norms might be lived within society by a person but are not, as we have noted, a sort of internal identity.  Proof of having a collection of documents, such as driving licence, passport or utility bill, as set out in the Gender Recognition Act 2004, is a bureaucratic, simulated substitute. Those with a non-binary identity might struggle.

Other inconsistencies can be noted.  While gender and gender identity refer to social constructions and internal senses, ‘gender reassignment’ refers to ‘reassigning the person’s sex by changing physiological or other attributes of sex.’  Since sex can be replaced by a ‘sex marker’ that recognises a person’s ‘gender’, it would also appear that gender changes (or reassigns) a person’s sex by a physical process (that does not have to be completed).  Gender identity as an internal sense can replace sex while gender reassigned involves a physical process.  These involve two very different operations, and it is not explained in what way they are able to involve and accomplish the same task.

Finally, the British Government document states that it wants to know the implications of ‘recognising a gender that is neither male nor female’, which are, of course, the two sexes and I don’t know of any other.  At this point it is tempting to repeat philosopher Alex Byrnes’ remark in his book (Trouble with Gender, p107) that “what ‘gender’ is supposed to mean is anyone’s guess.”  The labyrinthine series of definitions examined above form the basic structure, such as it is, of an ideology that is supposed to sustain certain political claims, and it is this ideology that further occasional posts will examine

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