Every border implies the violence of its maintenance. It’s just that the border guards differ.

Borders come in many kinds. The borders this statement brings to mind could be geographical, international. Perhaps they are otherwise spatial, or temporal. 

This is a post about sex and gender.

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Last Wednesday, the United Kingdom Supreme Court handed down its decision in For Women Scotland v The Scottish Ministers. The decision has been variously reported as defining or clarifying ‘what is a woman’ 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 ‘woman’ 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 ‘biological sex.’ The principal effect of this is to exclude women with a Gender Recognition Certificate from the Equality Act 2010 definition of ‘woman,’ and thereby from eligibility for, as was the case in Scottish Ministers, women’s places on boards.

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’s sex/gender from ‘birth’ to ‘acquired’ – that is to say, from one’s 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.

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Before there is a law, in Judith Butler’s words, ‘there must be a body trembling before the law, a body whose fear can be compelled by the law.” The law “marks the body first with fear only then to mark it again with the symbolic stamp of sex.” (Bodies that Matter, 101) 

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 ‘biological,’ is assigned depending on the point of view of an observer at birth in accordance with culturally determined categories of bodily configuration. Gender, as ‘the cultural meanings that the sex body assumes’ (Butler, Gender Trouble, 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 – being illegible, unwanted, castaway. How much worse, then, when the norm assumes the force of law?

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The Scottish Ministers decision repeatedly uses the language of ‘biological sex.’ The Court states that the term is “used widely… to describe the sex of a person at birth” (p7). This is colloquially true. However, more closely examined, the sense of this phrasing does not add up. A person has no ‘sex’ 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 ‘sex’ can be implied from – chromosomal and hormonal markers are also sometimes used despite being invisible to the eye. To say that sex, assigned at birth, is equal to ‘biological sex’ sells short both social sex and the science of human biology. It also elides observation and assignment, equating the two. The difference between them is the nuance on which the idea of sex as a social construct is built. 

This sex, assigned based on observed characteristics, is printed on the birth certificate and that administrative decision is then considered to be the person’s destiny for life. 

Biology, as they say, is not destiny. Admin is.

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Papers, please.

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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’s letter confirming that the applicant suffers from gender dysphoria; a two-year ‘real life experience’ 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.

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’s legal sex became to all legal intents and purposes the same as one’s lived gender. That was the reward for which the risk was taken – until Scottish Ministers 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.

Trans people live in a state of constant border-crossings. The state of being trans, itself, is a constant transition, a constant becoming, 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 – a given sex for the purposes of registration, but not for the purposes of sex discrimination or access to spaces.

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This is not an abstract exercise. Trans women are afraid to use the bathroom in case they are violently ejected from the ladies’, and liable to be assaulted in the mens’. 

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?

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Patricia Williams writes, ‘The Law. The law says, the law is. My life, my tissue, my membrane. Connection, suspicion, privacy, the secret wedged in the void…. I am a tiny figment, a gear and lynchpin to the law.’ (The Alchemy of Race and Rights, 208)  

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 Scottish Ministers is such a visceral betrayal of the community. For minorities, equalities law is meant to be a shield against violence – 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.

Until it doesn’t.

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Every border implies the violence of its maintenance.

Violence comes in many kinds.

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*The title ‘shouting ‘what makes a real woman’ as the earth is on fire’ is borrowed from this Instagram post by Travisabanza.

Co-posted with Doing Feminist Legal Work blog The Morrigan