Prefigurative Law Reform: Creating a New Research Methodology of Radical Change

by | 3 Mar 2023

 Image by Noah Purifoy |  http://www.noahpurifoy.com/joshua-tree-outdoor-museum

Prefigurative politics and law have long been seen as opposing phenomena – one a grassroots radical practice that embodies sought-after norms (horizontality, social justice, and ecology, for instance); the other an institutional structure that is typically hierarchical and backed by force. Yet, there is a growing interest in the relationship between the two.  In this short piece, I want to consider a specific form of prefigurative law – the imaginary law reform proposal. This is an experimental research method, I have been working with over the past 5 years, inspired by critical legal roleplaying – including the simulated progressive judgment-writing of feminist and other radical judgment projects. See, for instance, the current Anthropocene Judgment Project, producing anticipatory judgments for the ecological crises of the future.

Crafting a law reform proposal can be prefigurative in several respects. It might rehearse more democratic ways of designing legislation; convert radical ends into legal form; and approach controversial ideas as if already on the law reform table, and so worthy of serious consideration despite their distance from mainstream legal thinking.

This last is my entry point into considering prefigurative law. I start by introducing the gender project that formed the basis for this methodological approach, and then pull back to reflect on its value and challenges.

Approaching Prefigurative Law Reform Through Decertification

My exploration of prefigurative law reform, as a critical and hopeful research method, centres on “decertification” – a term that describes the institutional dismantling of legal sex and gender status. Decertification was at the heart of a 4-year collaborative ESRC project I worked on with colleagues that finished in 2022. Focused on the legal jurisdiction of England and Wales, the project studied the implications of removing sex and gender from legal personhood, and the legal and gender consciousness of different people towards such a reform. Using a mixed-methods approach, the project conducted a survey on attitudes that elicited over 3,000 responses, carried out 200+ interviews with organisational stakeholders, lawyers, academics, and publics, and held focus groups with legal professionals, government officials, NGOs, and academics to help prototype law reform principles.

Why Take Sex off Birth Certificates?

Currently, in England and Wales, people acquire a legal sex around birth through a hybrid process of genital observation and registration. This sex, importantly, also gives rise, to a corresponding legal gender, and both can be changed through formal legal transitioning – under the terms of the Gender Recognition Act 2004. Legal sex and gender status is often broached as a documentary matter amid the relentless requirement to disclose or confirm one’s category membership in the form-filling process. But while the significance of legal sex and gender status is hard to fully unravel (if, undoubtedly, less than some imagine), its reach extends beyond form-filling to the myriad contexts where legal (and not just socially legible) sex and gender are permitted to make a difference (or give rise to prescribed differences) – including in early years nursery and education, employer policies (such as on uniforms), and single-sex provision.

The implications of dismantling a structure that would take sex off birth certificates and void the need for Gender Recognition Certificates face in three primary directions: what it would mean for individuals if sex and gender became legally analogous to social relations of inequality that aren’t assigned, such as ethnicity and sexuality; to the changes required to laws, which currently assume a stable binary structure – anchored in distinctions between women and men, female and male, ‘same’ and ‘opposite’; and to the ongoing (and changing) use of sex and gender terms as normative resources for organisational policy and practice.

Decertification’s effects remain unknown. Plausibly, it will prove the direction for law and policy travel in many countries over the coming years. However, it has not yet been introduced in any jurisdiction and remains controversial. More commonly, countries liberalise transitioning procedures, reflected in Scotland’s halted bill. In some jurisdictions, legal reforms have also introduced recognition for ‘third’ (or ‘other’) genders – at least for certain purposes.  

When asked, some research participants said they preferred moves to multiply gender categories on the grounds it acknowledged gender’s importance for those whose identity had been negated. Others saw additional categories as a necessary intermediate step – like civil partnerships for gay people ahead of equal marriage. But moving to a system of recognition based on choice and plurality begs the question: why treat sex and gender as relevant statuses to law?

This question sits behind decertification. Yet, as a proposal to institute change, with all the upheaval that might ensue, its proposition also needs justifying – or at least that was the claim of opponents and sceptics who repeatedly asked us: why abolish legal sex?  

The obvious answer is to ease the lives of people who don’t fit the categories they’re assigned – abolishing the need to formally transition. This is an important reason. However, ending the justification here depicts decertification as a minority interest and assumes that the sex and gender status of other people is unproblematic. From a feminist perspective, there are a number of collective and structural reasons for decertification’s proposition. These hinge on its contribution to de-producing gender as an organising feature of society. De-production seems a worthwhile aspiration given gender’s presence as a social formation that structures inequalities in wealth, power, work, time, space, attention, and status.

Decertification withdraws the symbolic significance of sex and gender difference, currently presented officially as essential properties of subjects that need to be registered at birth and held onto (for most) throughout the life course. It challenges the state’s designatory role, reduces institutional and social confidence in determining or knowing what people ‘are’, de-legitimates overt use of gender norms (such as in grooming and uniform dress), avoids formalising women and men’s socially unequal status, and enables evolving and plural modes of self-identification (within gender’s terms and beyond them). Decertification enables people to refuse a gender box altogether, making it formally possible to live as agender (a subject position that parallels living as atheist in a country with an established church, like Britain, in interesting ways).

Yet, to the extent that decertification’s feminist benefits depend on observing what happens post-abolition, these claims are necessarily speculative. Critics argued that decertification wouldn’t impact positively on gender as an asymmetrical system of difference, but simply make it harder for women to reference sex for equality purposes – e.g., in women-only spaces, and for positive action purposes.

Importantly, decertification would not require “sex” or – we propose – “gender” to be dropped by equality law. What it would do is separate out the remedial use of gender categories from an insistence that membership in these categories be legally defined and determined. Elsewhere I have explored how positive action measures can work without formal category membership. I therefore want to turn here to a different question, one that pulls back from the specific study of decertification to ask: what can we learn from such a prefigurative law reform project?

A Vantage-Point on the Present

Starting a predominantly qualitative research project with an imagined law reform inverts conventional sociolegal research methods, which tend to start with an identified concern or problem to investigate, turning to solutions at the end. Why, then, start with a solution – acting as if it was already a suitable proposition for legal debate?

Speculative law reform provides a distinct vantagepoint through which to analyse the status quo. At the societal-level, starting with a ‘solution’ supports a systemic account of the problem that the solution is a solution to – since the focus is on the difference that reform might make rather than who is advocating for it, an advocacy often tied to specific, already recognised and claimed interests. Decertification may meet some people’s self-identified needs, but it is also an intervention in the production of gender-based needs and interests. This places the research in the terrain of subject formation and the complex ways that societies produce gender-differentiated subjects.

A proposal for change also elicits responses. Asking people about a reform that many found untimely or too radical brought participants’ present-day attachments, concerns, and priorities to the fore. In the process, it exposed some of the discourses currently circulating. Positing the legal abandonment of sex and gender’s formal status and classification led proprietary and nativist accounts of gender to surface, notably when non-trans women identified the category of women as theirs in a ‘we were here first’ kind of politics. Security, protection, and rights also emerged as key political counters, as did the ‘real’ – repeatedly alluded to as a stable realm of life distinct and separate from its imagining.

Exposing current understandings and attachments, by proposing reform, echoes claims made about utopian spaces and imaginaries – that the critical distance they provide, through showing how things could be otherwise, denaturalises take-for-granted aspects of contemporary existence. Of course, distance – critical or otherwise – is not straightforwardly possible. Utopian desires are products of the times in which they are expressed, and as Barad notes, the tools of critique are not separate from their targets. Practically, however, the denaturalisation of legal sex and gender, at the heart of the proposed reform, encouraged research participants to reflect upon taken for granted features of their sociolegal world, such as legal sex.

Identifying legal sex as fashioned, through governmental technologies of observation and registration, invited participants to recognise it as a social rather than natural fixture and to reconsider its value. While this was unremarkable for some, and more challenging for others, attempts to discuss legal sex were also complicated and swept up into the public conflict, and entrenched positions, simultaneously taking place (even as the research provided an observational vantage and entry point into the conflict).

A Research Method for Rehearsing and Exploring Change

Second, prefigurative law reform proposals provide a way of exploring, in detail, a radical change that can remain under-attended to because it appears farfetched. Asking people for their views on a proposal elicits accounts of its strengths and weaknesses that can be helpful for its development. Revising the proposal doesn’t have to mirror the agendas and concerns of critics. The challenge, as I discuss below, is giving time to concerns, while allowing them to suggest other transformative paths.

Prefigurative law reform is radical; but it is also compatible with ‘slow law’. Here, I use the term less as a critical account of law as it is, than as indicating, paradoxically, its rhizomatic potential (including through informal legal orders).  Slow law can involve rapid movement in a range of sites and directions. It provides, however, a way of taking up seemingly untimely changes, countering the dismissive rejection that the time is not now right.

Slow law recognises some structural changes take time, and – in accordance with prefigurative thinking – that the process is also important. Like slow food and slow cities, it signals a creative, participatory, even pleasurable way of advancing radical change. Prefigurative law reform proposals may explicitly or tacitly present legislation as the motor. But they can also operate, more symbolically, to designate (or name) a transformative assemblage – involving a slew of practices, policies, norms, and laws that hollow out the legal significance, here of sex and gender, in advance of any formal dismantling. 

Law reform projects have much to learn here from critical design studies and prototyping methods. In critical prototyping, the aim isn’t to move linearly towards perfect functionality but to create things that prompt and stimulate.

Proposing new law can also invert law reform’s conventional funnelling structure – where a lot of stuff goes in and something far narrower and more modest comes out. It may prompt, instead, a flourish of paths spilling out from a single starting point. In design studies, prototyping is an iterative process of modelling how things could work. It is also a way of posing questions and stimulating ideas through the development of, usually, material prompts. In our case, decertification as a law reform idea formed an entry point not an end point, and in connecting decertification to an expansive set of concerns, critics’ objections proved helpful.

Women’s sports and single-sex prisons, for instance, were often presented as major stumbling blocks in the pursuit of legal sex’s abolition. Faced with such obstacles, a strong temptation is to speak back and explain – to demonstrate how these activities and spaces could still operate in the aftermath of decertification. However, the prefigurative aspect of prefigurative law reform pushes discussion in a different direction: to rethink fairness in sports; or safety and wellbeing among incarcerated people – and to attend, more fundamentally, to the problem of incarceration itself. Thus, the focus on allocating categories – of who gets to count as what – which decertification both flags and unsettles segues into a more far-reaching political project oriented to transformative notions of social justice.

Making Something New

Third, prefiguring law involves making. Fashioning a law reform proposal is not just a tool for knowledge generation, it is also a way of creating something. Prefigurative law reform research sits at the interstices of real and imaginary legal action. Like feminists roleplaying judges, it can be seen to roleplay the law reform process. But it also involves making real proposals. These proposals are not authorised by conventional authorities, and they lack formal pathways into parliament. But these absences do not only enhance their fictive qualities. They can also contribute to their realness as prefigurative proposals since they rehearse and trial horizontal, less pragmatic, perhaps even wilder ways of conducting legal reform discussion. 

Making an imaginary law is shaped by wider processes, which in turn it may contribute to. From the outset of our research, critics of the project used it to demonstrate where more moderate-seeming reforms, such as liberalising gender transitioning procedures, would end up; and to crystalise why legal status was important. For others, decertification offered an anticipatory representation of something utopian – a place beyond present-day pragmatic politics. Thus, decertification became a hopeful name for a broader imaginative project, for gender change beyond the specific and narrow question of legal sex.

A law reform proposal that operates outside of conventional processes may not deliver a new law. What comes into being as a result of the research may also ebb and flow, and the “afterlife” of a prefigurative law reform project is worth attending to. Being an academic creation, what gets made also lends itself to being studied. Prefigurative law methods, reflexively, study what the development of a radical proposal becomes and what it does. How it might prove a lively, unpredictable actant in a political or sociolegal field, how (and if) it dies, and how it might come back to life in another form.

***

Prefigurative law reform provides a method for critically analysing what is – identifying problems with dominant arrangements that have become submerged, or that surface in the course of developing an imaginary proposal; for considering novel ways of organising social life in the absence of a taken for granted structure (like sex and gender); for formulating changes beyond what is presently perceived as viable; and for conducting reflexive research on an academic intervention in a legal and political arena – an intervention that becomes both reimagined and rematerialized in the process.

Imagining more socially just modes of organised life in Britain is crucial today when even minor progressive change can seem out of reach. And academic research can contribute to this process. It is easy for prefigurative projects to be dismissed as farfetched; indulgent luxuries to sweep aside. Alternatively, law and institutional action may become subject to the critical imperative to be cleared away to make room for essential change through grassroots means.

Prefigurative law reform refuses both of these moves. Instead, it makes claims on the techniques and possibilities that an institutional structure – law – offers. And it provides one method for its utilisation, in the form of a proposal, in pursuit of radical change. This is a method that can be applied to many taken-for-granted aspects of our society, including borders, incarceration, and money, whether the aim is just to understand them or to support their transformation.

Political polarisation, refracted and reinforced through social media, pulls people into separate conversational stalls. Prefigurative law reform invites critics, advocates, and others to participate in a shared conversation about social change on a stage hosted by law, where the ambition, vitality, and depth of what develops depends on their co-participation – however uneasy it may prove.

Originally published on Davina Cooper’s ‘social, politics and stuff’: https://davinascooper.wordpress.com/2023/02/28/prefigurative-law-reform-creating-a-new-research-methodology-of-radical-change/

2 Comments

  1. This article is the same hopeless muddle that the research project was. 4 years to produce a report of fewer than a 100 pages, that felt like a 1000. Sex is like our age, a biological datum over which we have no control. Gender is just a collection of stereotypes that should never be protected by law. Not recording sex at birth makes the selective killing of girls easier to perform and impossible to keep track of. This is how dangerous this ideology is. And I only wonder whether its proponents are too naive to understand the consequences or too callous to care.

    Reply
    • The Future of Legal Gender project has produced a number of academic publications in addition to our public report and blog posts, which might be of interest.

      A Special Issue of Feminist Legal Studies is coming out shortly with research papers and other contributions on decertification and prefigurative research.

      In addition, the following refereed journal articles (open access) have been published:

      Cooper, D. (2023) De-producing gender: the politics of sex, decertification and the figure of economy. Feminist Theory 14647001221148639.

      Newman, H.J.H. & Peel, E. (2022) ‘An impossible dream’? Non-binary people’s perceptions of legal gender status and reform in the UK, Psychology & Sexuality 13(5), 1381-1395.

      Cooper, D. (2022). What does gender equality need? Revisiting the formal and informal in feminist legal politics. Journal of Law and Society 49(4), 800-823.

      Renz, F. and Cooper, D. (2022) “Reimagining Gender Through Equality Law: What Legal Thoughtways Do Religion and Disability Offer?” Feminist Legal Studies 30, 129–155

      A Special Issue of feminists@law (2020) including:

      Cooper, D. and Emerton, R. (2020). “Pulling the thread of decertification: What challenges are raised by the proposal to reform legal gender status?” 10(2) feminists@law. With commentaries by Ruth Fletcher and Ambreena Manji.

      Renz, F. (2020) “The challenge of same sex provision: How many girls does a girls’ school need?” 10(2) feminists@law. With commentaries by C.L.Quinan and Jennifer Fraser.

      Peel, E. and Newman, H. (2020). “Gender’s Wider Stakes: Lay Attitudes to Legal Gender Reform.” 10(2) feminists@law. Plus commentaries by Kath Browne and Shona Hunter.

      Cooper, D. (2020). “Taking Public Responsibility for Gender: When Personal Identity and Institutional Feminist Politics Meet”. 10(2) feminists@law. Plus commentaries by Sumi Madhok and Vanessa Munro.

      Grabham, E. (2020). “Exploring the Textual Alchemy of Legal Gender: Experimental Statutes and the Message in the Medium”. 10(2) feminists@law. Plus commentaries by Alain Pottage and Helen Xanthaki.

      Cooper, D. (2020) “Towards an adventurous institutional politics: the prefigurative ‘as if’ and the reposing of what’s real”. Sociological Review 68(5), 893-916.

      Cooper, D. (2019) “A very binary drama: The conceptual struggle for gender’s future”. 9(1) feminists@law.

      Reply

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