How do you solve a conundrum such as “gender”? Whose right is it to actually solve this, and more importantly, whose right is it to create a legal framework within which sex and gender can be conceptualised. That last question depends on where you live, with the courts and legislature being the obvious answer, but I would argue that those are the last places where gender is actually solved, with the court of public conversation being the wellspring from which the solution arises.
I ask these questions because whenever gender and sex are discussed, everyone will bring their own perspective to the conversation to the table, eliciting opinion and self-understanding to ascribe a ‘right’ way of solving the perceived conundrum. Cis folk do this, trans folk by their very existence challenge this, but always from a perspective that there is a problem in need of a solution.
What is the very notion of gender being a conundrum and a problem is the problem by itself? What if in seeking a solution that squared a person’s self-perception with a State’s need to categorise we miss the very fundamental question of why this arose in the first place. Sex, at least in the binary sense, is a 19th century bureaucratic construct that became medicalised when anyone who fell outside the normative notion of sex deigned to try to live a normative life. Yes, the notion of normative sex depends on the culture, country, time in history, and religion, but broadly this normativity is boxed off as male and female. Gender, as a personal understanding of self, arose as a dialectic way of squaring away the internal understanding of self and one’s externalised self-expression, and unlike sex never acquired a legal status.
To challenge sex-based orthodoxy requires you to ask why sex as a scientific and legal construct arose in the first place. Yes, biology is a thing, but legally, why is sex a legal construct? Why, legally, do we define men and women as discrete legal concepts? The obvious answer is rooted in biology, as women have historically been denied rights purely on the external genitalia seen by those folk who birthed them. Yet, this is reductive, as womanhood is much more complex than simple biology; for is woman is womb, vagina, XX chromosomes, feminine appearance, secondary sex characteristics, and demure of heart and mind, then there would scarcely be a true Scotswoman around us. The conundrum comes when you ask who in there right mind wants to be stripped of privilege, who wants to give up higher masculine ground. Gender identity and expression become a knot of self-understanding wrapped in a less rights precisely because the State does not understand how to deal with the complexity of the human experience.
This is more than a transgender conversation, more than a battle for women’s rights. Gender, as a social construct, is squared only when you see that it is also self-understanding. Ask yourself why you feel the gender you do, why you express yourself the way you do, and why, ultimately, you exist in the society in the manner you do. None of this has any legal weight, for the law is only concerned with cutting through that complexity to make it easy for the State to operate. Yet, your own identity will always persist alongside the legal fiction of sex.
How we perceive ourselves is as much to do with the media we are exposed to, the mentors/parents/teachers we have growing up, and the marketing directed to us from companies trying to sell their idealised version of gender. We are no more an oasis of self-understanding than we are the voices we process and synthesise into the people we become today. Indeed, the gender you understand yourself to be has likely morphed and evolved as you have grown. Your self-understanding and expression has developed and grown. Yet, your legal sex never will. It is as fixed a loadstar as it is possible to be, and while there are legal remedies for this, very few States will obliterate your assigned sex at birth from the records.
So why do we still seek solutions to gender, especially legal remedies that seek to carve out protections? The honest answer is that we all live in societies where non-normative minorities are threatened, where women still have fewer intrinsic rights, and where the media and politicians whip up hatred just to sell more products and get re-elected. Single mothers, immigrants, trans folk, gypsies, Muslims et al have been persecuted until there placed under legal protections, yet they still have fewer rights than those who society deems normative.
This is where going back to first principles is critical. What is normative gender and sex? Is it a societal majority of legally defined male and female assigned at birth? Or is it the self-understanding of gender identity, gender expression, and biology? No two people have the same conception of self, yet we are expected to live within two quite narrow definitions of legal sex. Public conceptions of sex and gender are shaped by a lifetime of experiences and media consumption, which in turn flows into the debates, politics, and conversations we have about sex and gender. No one person has a monopoly on what defines gender or legal sex. It is up to us as a society to frame what is normative, and I would argue that it time we engaged with the principles of legal sex and reframe it, seeing all gender expressions, gender identities, and biological sexes as normative, not just the narrow legal conceptions most States apply in 2023.