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<\/figure>\nEvery border implies the violence of its maintenance. It\u2019s just that the border guards differ.<\/p>\n
Borders come in many kinds. The borders this statement brings to mind could be geographical, international. Perhaps they are otherwise spatial, or temporal.\u00a0<\/p>\n
This is a post about sex and gender.<\/p>\n
\u2013 \u2013 \u2013<\/p>\n
Last Wednesday, the United Kingdom Supreme Court handed down its decision in\u00a0For Women Scotland v The Scottish Ministers<\/em><\/a>. The decision has been variously reported as defining or clarifying \u2018what is a woman\u2019 in UK law. In reality, it is (as usual) more complicated than that. What the decision says is that, for the purposes of the Equality Act 2010, the definition of \u2018woman\u2019 in the Act is that which was used in the Sex Discrimination Act 1975, unmodified by the Gender Recognition Act 2004, i.e. female by \u2018biological sex.\u2019 The principal effect of this is to exclude women with a Gender Recognition Certificate from the Equality Act 2010 definition of \u2018woman,\u2019 and thereby from eligibility for, as was the case in\u00a0Scottish Ministers<\/em>, women\u2019s places on boards.<\/p>\n The practical consequences of this case are very worrying for transgender people in the UK. A Gender Recognition Certificate is, by its statutory definition (s9.1 GRA 2004), meant to render one\u2019s sex\/gender from \u2018birth\u2019 to \u2018acquired\u2019 \u2013 that is to say, from one\u2019s sex assigned at birth, to the sex\/gender in which one lives. The decision essentially redacts that for the purposes of sex protection under equalities law. It creates a contradictory situation in which a GRC holder is legally female, but not legally a woman for the purposes of the Equality Act. This means that despite holding a GRC, a trans woman can be excluded from women-only single-sex spaces (provided, still, that the single-sex space is established as a proportionate measure for a legitimate aim). The Chair of the Equality and Human Rights Commission, has said that following the ruling she believes that spaces such as changing rooms should be single-sex to the exclusion of trans people.<\/p>\n \u2013 \u2013 \u2013<\/p>\n Before there is a law, in Judith Butler\u2019s words, \u2018there must be a body trembling before the law, a body whose fear can be compelled by the law.\u201d The law \u201cmarks the body\u00a0first<\/em>\u00a0with fear only then to mark it again with the symbolic stamp of sex.\u201d (Bodies that Matter<\/em>, 101)\u00a0<\/p>\n Before there is a law, there are people, embodied people, yes, but it is only through the operation of the law that the person becomes a body and the body acquires a sex. Sex, putatively \u2018biological,\u2019 is assigned depending on the point of view of an observer at birth in accordance with culturally determined categories of bodily configuration. Gender, as \u2018the cultural meanings that the sex body assumes\u2019 (Butler,\u00a0Gender Trouble<\/em>, 6), is presumed to follow. Sex\/gendering happens within a system of cultural norms which render bodies intelligible or otherwise. To be rendered unintelligible in relation to the norm is to enter a state of abjection \u2013 being illegible, unwanted, castaway. How much worse, then, when the norm assumes the force of law?<\/p>\n \u2013 \u2013 \u2013<\/p>\n The\u00a0Scottish Ministers\u00a0<\/em>decision repeatedly uses the language of \u2018biological sex.\u2019 The Court states that the term is \u201cused widely\u2026 to describe the sex of a person at birth\u201d (p7). This is colloquially true. However, more closely examined, the sense of this phrasing does not add up. A person has no \u2018sex\u2019 at birth. A person has bodily characteristics, external and internal, which are then observed and sexed. The external characteristics on which sexing is based, however, are not the only markers that \u2018sex\u2019 can be implied from \u2013 chromosomal and hormonal markers are also sometimes used despite being invisible to the eye. To say that sex, assigned at birth, is equal to \u2018biological sex\u2019 sells short both social sex and the science of human biology. It also elides\u00a0observation<\/em>\u00a0and\u00a0assignment<\/em>, equating the two. The difference between them is the nuance on which the idea of sex as a social construct is built.\u00a0<\/p>\n This sex, assigned based on observed characteristics, is printed on the birth certificate and that administrative decision is then considered to be the person\u2019s destiny for life.\u00a0<\/p>\n Biology, as they say, is not destiny. Admin is.<\/p>\n \u2013 \u2013 \u2013<\/p>\n Papers, please.<\/p>\n \u2013 \u2013 \u2013<\/p>\n Administrative violence is as real as any other kind. The innate problem with a document-based system of identity is that decisions must be made about who gets to hold those documents. Everyone born in the United Kingdom is issued a birth certificate, which certifies, among other things, their sex. Most people who undertake to apply for a Gender Recognition Certificate will be granted one, which will thereby update their birth certificate to their averred gender. The Gender Recognition Act 2004 procedure is a difficult one, involving a psychologist\u2019s letter confirming that the applicant suffers from gender dysphoria; a two-year \u2018real life experience\u2019 test; and a commitment to live in the updated gender until death. All of this must be adjudicated by a Gender Recognition Panel, an administrative body with the power to grant or reject an application.<\/p>\n The procedure is not undertaken lightly. Indeed, for many, it is not undertaken at all. For non-binary people, there is no option for recognition under the GRA. For some eligible trans people, the exigencies are too painful. For others, the inherent threat of putting oneself on a government register of transgender persons is a risk not worth taking. The benefit to having a GRC, of course, was that one\u2019s legal sex became to all legal intents and purposes the same as one\u2019s lived gender. That was the reward for which the risk was taken \u2013 until\u00a0Scottish Ministers\u00a0<\/em>more or less took the utility out of having a GRC for the purposes of equality law. The reward is much less valuable now; the risk only ever greater.<\/p>\n Trans people live in a state of constant border-crossings. The state of being trans, itself, is a constant transition, a constant\u00a0becoming<\/em>, wherein social, interpersonal, and even biological borders are frequently traversed. The GRC was meant to be a bright line in law demarcating the life of a person from one legal state to another. Now, men and women with GRCs are left in legal liminality \u2013 a given sex for the purposes of registration, but not for the purposes of sex discrimination or access to spaces.<\/p>\n \u2013 \u2013 \u2013<\/p>\n This is not an abstract exercise. Trans women are afraid to use the bathroom in case they are violently ejected from the ladies\u2019, and liable to be assaulted in the mens\u2019.\u00a0<\/p>\n What kind of quality of life can you have, if you cannot leave the house for longer than your bladder holds out? What kind of being-in-the-body does that leave you with?<\/p>\n \u2013 \u2013 \u2013<\/p>\n Patricia Williams writes, \u2018The Law. The law says, the law is. My life, my tissue, my membrane. Connection, suspicion, privacy, the secret wedged in the void\u2026. I am a tiny figment, a gear and lynchpin to the law.\u2019 (The Alchemy of Race and Rights<\/em>, 208)\u00a0\u00a0<\/p>\n Trans people are no strangers to what Williams describes. To submit to the workings of the law is to recognise oneself as a body regulated by social powers beyond oneself. This is why\u00a0Scottish Ministers<\/em>\u00a0is such a visceral betrayal of the community. For minorities, equalities law is meant to be a shield against violence \u2013 against the border guard at passport control or the door to the bathroom. Trans people live under the law, and in return the law gives protection.<\/p>\n Until it doesn\u2019t.<\/p>\n \u2013 \u2013 \u2013<\/p>\n Every border implies the violence of its maintenance.<\/p>\n Violence comes in many kinds.<\/p>\n \u2013 \u2013 \u2013<\/p>\n *The title \u2018shouting \u2018what makes a real woman\u2019 as the earth is on fire\u2019 <\/strong>is borrowed from this Instagram post by Travisabanza<\/a>.<\/p>\n Co-posted with Doing Feminist Legal Work blog The Morrigan<\/a><\/p>\n<\/div>\n