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Endless sex

Endless sex

Endless sex

In other words, the Act appears to transcend the prior reform test of Endless sex and anatomical harmony. Bracton, H. No customer reviews. In Re Kevin, what might be described as a genitocentric legal imperative appears to have been abandoned. This is positive in the sense that not all transgender people feel the need to take such measures in order to feel that they inhabit the correct gendered body. The Act has been objected to for two principal reasons. London, Longman Google Scholar. Normative ethics.

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Sign in Create an account. Syntax Advanced Search. About us. Editorial team. Andrew N. Feminist Legal Studies 15 1 While the Act does move in the direction of gender, and ostensibly in an obvious way through abandoning surgical preconditions for legal recognition, it will be argued that the Act retains and deploys the concept of sex. Moreover, it will be argued that the concept of sex retained is not merely an anatomical understanding, but sex in a biological sense.

In this respect the Gender Recognition Act can be viewed as embodying a tension between gender and sex. Further, it is contended that this tension is explicable in terms of irresolution of contrary legal desires to reproduce the gender order and to insulate marriage and heterosexuality from homosexuality in the moment of reform. Feminist Ethics in Normative Ethics. Edit this record. Mark as duplicate.

Find it on Scholar. Request removal from index. Revision history. From the Publisher via CrossRef no proxy link. Configure custom resolver. Gender Trouble: Feminism and the Subversion of Identity. Judith Butler - - Routledge. Undoing Gender. Butler - - Routledge. Elizabeth Spelman - - Beacon Press. A Critique of the Gender Recognition Act Sharpe - - Journal of Bioethical Inquiry 4 1 Feminism and the Gender Recognition Act Ralph Sandland - - Feminist Legal Studies 13 1 Sharon Cowan - - Feminist Legal Studies 13 1 Sarah Burgess - unknown.

Measuring Gender. Christopher D. Horvath - - Biology and Philosophy 14 4 Gender and "Postmodern War". Robin May Schott - - Hypatia 11 4 - Gender, Performativity, and Bisexual Identity. Melissa Burchard - - Radical Philosophy Today Gender: Still a Useful Category of Analysis? Joan Wallach Scott - - Diogenes 57 1 Barchunova - - Studies in East European Thought 55 1 Applying the Concept of Gender: Unsettled Questions.

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Endless sex

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To browse Academia. Skip to main content. You're using an out-of-date version of Internet Explorer. Log In Sign Up. Alex Sharpe. While the Act does move in the direction of gender, and ostensibly in an obvious way through abandoning surgical preconditions for legal recognition, it will be argued that the Act retains and deploys the concept of sex.

Moreover, it will be argued that the concept of sex retained is not merely an anatomical understanding, but sex in a biological sense. In this respect the Gender Recognition Act can be viewed as embodying a tension between gender and sex. Further, it is contended that this tension is explicable in terms of irresolution of contrary legal desires to reproduce the gender order and to insulate marriage and heterosexuality from homosexuality in the moment of reform.

It offers itself as a pause. The need to take stock is necessitated by trends evident within transgender law reform, culminating in the Gender Recognition Act.

In two recent articles published in this journal it has been argued that with the enactment of the Gender Recognition Act the concept of gender has replaced that of sex in comprehending and regulating the legal claims of transgender people Sandland ; Cowan Certainly, the Gender Recognition Act can be read in these terms given that it abandons, at least ostensibly, the hitherto transgender law reform requirement that legal recognition be contingent on the undertaking of sex genital reassignment surgery.

Indeed, the Act appears to dispense with the need for surgery of any kind or, for that matter, hormonal treatments. In other words, what is significant about the Act on this account, and what distinguishes it from reform legislation and judicial decisions of other jurisdictions, is the fact that on its face it appears to dispense with the body. That is, not merely with biology a step well rehearsed within transgender law reform generally but anatomy.

However, the argument I wish to develop here is that the Gender Recognition Act provides reason to think that a biological understanding of sex persists as an important subtext within the legislation. Moreover, it is contended that this fact is inextricably tied up with the homophobia of law. For a biological understanding of sex is apparent within the case law in a variety of ways. These include insistence on a biological understanding of sex for the purposes of comprehending the pre-operative body,5 the insulation of marriage from the effects of some reform decisions pertaining to other legal subject matters,6 and judicial anxiety over non-disclosure of gender history prior to a marriage ceremony.

While attempts to realise these desires have varied across jurisdiction and over time, they have remained relatively stable as regulatory ideals. However, this amnesty appears to be accompanied by a form of legal amnesia. That is to say, law engages in the practice of forgetting, and what it forgets or represses is precisely the facts that previously placed the beneficiary of the amnesty outside the law, namely, a disjunction between sex and gender as legally comprehended.

It is in this context that the homophobia of law, underscored by a biological understanding of sex, tends to return. Moreover, and in this respect, there appears to be a tension, if not a contradiction, in legal desire, one that accounts for judicial and legislative ambivalence regarding recognition in moments of reform.

It is my contention that this analysis applies to reform jurisprudence generally and that it holds for the Gender Recognition Act. Indeed, the possibility of inaugurating a third term or gender position has consistently been rendered inconceivable within legal discourse. To this end the article will consider three common law decisions as exemplars of key reform shifts. In this case the court had to consider the validity of a two-year marriage between a biological man and a post-operative male to female transgender woman.

The court rejected the biological analysis adopted by Ormrod J in the English decision of Corbett v Corbett. That is, the court rejected a legal test that insisted sex is determined at birth with reference to congruence of chromosomal, gonadal and genital factors. Instead, the court preferred to articulate a test of psychological and anatomical harmony for determining sex. Here what concerned the court was not the past but the present, in the shape of post-surgical reality. Accordingly, her anatomy having been brought into conformity with her psychology, MT was considered to be female for the purposes of marriage.

However, and significantly, MTs sex genital reassignment surgery did not, of itself, serve to assuage the anxiety of the court. Rather, the court placed particular emphasis on her post-operative sexual capacity: Implicit in the reasoning underpinning our determination is the tacit but valid assumption of the lower court and the experts upon whom reliance was placed that for the purposes of marriage under the circumstances of this case, it is the sexual capacity of the individual which must be scrutinized.

In this regard, law reform reproduces the gender order along phallocentric lines. While law is concerned over bodily aesthetics this concern proves insufficient. Ultimately, what governs the reform moment in MT v JT is the sexual functioning of the body not its aesthetic form.

The court made it clear that bodily change brought about through hormone administration or other medical means was insufficient in this regard. While Otahuhu shares much with prior reform recognising sex claims there is a striking difference. In MT v JT, and in other decisions, the courts have insisted that legal recognition is dependent on, not merely sex reassignment surgery, but also, post- operative capacity for heterosexual intercourse.

In Otahuhu however, while Ellis J. While Ruthann Robson is right in stating that a continued requirement of sex reassignment surgery typically has the effect of producing heterosexual capacity , p.

In short, the uncoupling of sex reassignment surgery from the capacity for heterosexual intercourse in Otahuhu represents an architectural shift within transgender jurisprudence from functionality to aesthetics. To collapse this distinction is to miss the insight that it offers as to the purpose of sex reassignment surgery as legally comprehended.

While an aesthetic concern over bodies is a consistent theme of transgender jurisprudence it is usually masked, at least partially, by a preoccupation with heterosexual capacity. Thus the decision suggests that heterosexual capacity is not crucial to the legal construction of sex. By the same token, the production of heterosexual capacity would not appear to be necessary to reproducing the gender order or to insulating marriage and heterosexuality from homosexual practice.

It would seem that heterosexual capacity is surplus to legal desire. In other words, Kevin lacked a penis. In Re Kevin, what might be described as a genitocentric legal imperative appears to have been abandoned. Accordingly, the decision might be viewed as presenting some difficulty for a thesis that places emphasis on a legal desire to insulate marriage and heterosexuality from homosexuality. Yet, a close textual reading of Re Kevin suggests otherwise.

For this decision is not a linear tale, a tale of progress. Indeed, the decision differs considerably, and in an unfavourable way, from prior reform decisions.

This is because the criteria for determining sex are reconfigured in Re Kevin. Rather, I simply note that the legal determination of sex need not rely on, or be over-determined by, scientific findings.

Reform prior to Re Kevin exemplifies this point. In this regard the spectre of the Corbett decision haunts the reform moment. In this respect, reformism inaugurates an expansion of gatekeepers, which transgender people intent on legal recognition, must negotiate. By the same token the introduction of social and cultural elements might be seen in terms of assuaging legal appellate, broader community and cultural anxiety concerning the boundary between transgender and homosexuality.

Finally, it should be borne in mind that Kevin had undertaken a variety of invasive though non-genital surgical procedures, and that this fact proved crucial to his legal recognition as a man. It is against this background of common law reform that analysis of the recent Gender Recognition Act needs to be situated. That is to say, the legislation needs to be understood in the context of legal desires that enable, structure and limit reform. Most obviously it, at least ostensibly, or at the level of legal form, dispenses with any requirement to undergo surgery of any kind, or indeed take prescribed hormones.

This is positive in the sense that not all transgender people feel the need to take such measures in order to feel that they inhabit the correct gendered body. This is perhaps especially the case with regard to female to male transgender men. This can be contrasted with other jurisdictions where sterilisation is formally required 41 or operates in a de facto manner. Despite all these positive features, it is my contention that a biological understanding of sex, remains, in an important sense, a subtext within the Act.

However, before developing this claim it is important to detail other difficulties with the legislation.

The Act has been objected to for two principal reasons. First, a successful application for a Gender Recognition Certificate requires an applicant, who is pre-operative, to demonstrate gender dysphoria. It was criticised as inhumane and as destructive of the family. In this regard, the Act clearly aims to reproduce a binary gender order. It is also necessary to invoke a distinction between legal form and substance in thinking about the legal regulation of transgender people under the Gender Recognition Act.

While on its face the Act does not require applicants to undergo surgery of any kind, it is clearly the expectation of the government that surgery will occur. This point is made manifest in a variety of ways.

In the first place there are two avenues for applying for a Gender Recognition Certificate under the fast track application process that operates for the first two years of hearing applications. Moreover, in the case of an applicant who has not undertaken surgery, the possibility remains, both in relation to fast track and standard applications, that this fact may hinder a diagnosis of gender dysphoria.

However, this assessment is based on anecdotal evidence in the form of emails received from satisfied applicants. The Gender Recognition Panel figures indicate only whether a final decision has been made.

Moreover, Press for Change note at least one case of rejection having come to their attention. Even if one were to accept an argument about a disjunction between legal form and substance it would only lead to the conclusion that an understanding of sex as anatomy as distinct from biology underscores the Act. Yet, there is a provision of the legislation that suggests something different.

Moreover, it is my contention that this provision is explicable in terms of the homophobia of law. While it is easy to see how the Gender Recognition Act, through its requirement of a permanent crossing, reproduces a binary understanding of gender, it is less clear how the Act gives effect to the homophobia of law, other than, of course, through its treatment of married transgender people.

Rather, in order to appreciate a connection between the Gender Recognition Act and a biological understanding of sex we must look to section 11 of the Act. Section 11 gives effect to schedule 4 to the Act. Crucially, paragraphs 4 and 5 of schedule 4 amend section 12 of the Matrimonial Causes Act to add a new ground for rendering a marriage voidable, namely: That the respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act Thus where: At the time of the marriage one party to the marriage did not know that the other was previously of another gender, the former may seek to annul the marriage.

For it points not only to underlying homophobia, an aspect of the legislation rendered most visible by the exception pertaining to married transsexuals, but also to a biological understanding of sex. In cases where disclosure of gender history has occurred the courts have given particular emphasis to this fact and it has served both as a source of judicial relief and as a factor in moments of legal recognition. Accordingly, such marriages can no longer be declared void.

Nevertheless, rather than leaving the parties to institute divorce proceedings, as some jurisdictions do in non-disclosure type situations,79 the Gender Recognition Act adds non-disclosure of gender history to the limited list of situations under the Matrimonial Causes Act where a party may apply to the court to have a marriage annulled. Non-disclosure of gender history is viewed in the eyes of English law as a profound breach of trust.

It is not clear how, other than through the lens of homophobia, a provision pertaining to non-disclosure of gender history, one that amounts to nothing less than a form of institutionalised outing, can be comprehended. In addition to non-disclosure of gender history the Matrimonial Causes Act contains six other grounds for classifying a marriage as voidable.

In relation to pregnancy explanation for the provision lies, perhaps, in concern over uncertain paternity and lineage.

Endless sex

Endless sex

Endless sex