Flora Renz, Lecturer in Law, University of Kent

How can we move beyond current contentious debates around the role of gender? Is it possible to (re)imagine gender within the legal sphere in a way that does not conceive it as either solely oppressive or purely self-determined? To address these questions I will draw on some initial thoughts emerging from a wider ESRC funded research project on the future of legal gender. This is a prefigurative law reform project that asks whether legal gender status still matters, in what circumstances, and for whom. By asking a law reform question that is not yet on the table, namely, what value does the current status quo have (if any), this project seeks to explore the consequences and impact of more fundamental changes to legal gender status.

Part of the challenge of a prefigurative law reform project, is to think through what such options would look like. If we want to imagine and anticipate different ways of dealing with gender as a legal status, one useful starting point may be to think about how other identity statuses or categories are currently dealt with in social, policy and legal contexts. Disability as a category may offer a particularly rich source both for comparison, but also to think about how future changes to gender could be approached from a different starting point. In thinking through these issues I am using disability or chronic illness not as a direct comparison but rather as a prompt for considering some aspects of gender that are less prominent in current discussions, such as gender as a legal category whose intensity and relevance may fluctuate in different times and places.

Fluctuating categories

It is now fairly well understood that disability can vary over time or may have more severe effects at some points in time than others and in fact this is covered by the definition of disability in the Equality Act 2010. For instance, the official explanatory notes to the Equality Act mention that the current definition of disability includes fluctuating conditions like colitis. As such the Equality Act currently makes provisions for both those whose disability has a continuous impact of their life, but also for people whose disability may be more episodic. The focus in law is on considering the overall impact of a specific condition, without the need to show that this always has an effect on a person’s life. It does seem helpful to consider whether we can think through gender as having a similar temporal or fluctuating dimension and to focus on gender as fluid not in the sense that someone individually perceives their gender identity as such but rather as a category or social reality that can vary in intensity or that might have different effects in different moments. Can we then accommodate and protect people who may experience persistent negative effects because of their gender as well as those who may only experience negative effects in specific instances, for example in the context of maternity leave? Such an approach may allow for a more nuanced analysis of gender-based oppression or discrimination, which is frequently impacted by the simultaneous working of other factors like race, class and religion. In contrast to disability, gender is not generally understood as fluctuating in the same way. Would it be possible and productive to conceive of gender as experienced in both social and legal settings in the same terms?

We may also wish to think about the ways in which the language of chronic illness or chronic conditions can be used to think about gender in different ways. The law is already recognising that some conditions may have periods of “flare-ups” as well as “remission”, could we similarly think about gender as something that may flare-up at a given time, and so carry more relevance, and go into remission at other times, but nevertheless have life-long effects? Sticking with the example of maternity or parental leave, for instance, although discrimination may only be acutely experienced for a relatively short period of time, the effects of such discrimination are often persistent and may even remerge more acutely at later stages, as can be seen in the effects decisions around childcare have on pension entitlements for women.

Situational limitations

Perhaps the most obvious connection between both disability and gender seems to be their often situational character. Although many abilities and disabilities are in fact always present, they are generally most acutely experienced when the set-up of everyday life, which still frequently relies on ableist norms, turns them into a barrier to access. This can be a direct and visible barrier, in the form of buildings or certain rooms only accessible via steps, which bar access to anyone unable to navigate these, or a more indirect barrier as in the case of talks or meetings held in large rooms without the use of microphones or other audio technology, which bar access to participating fully either as presenters or attendees. Similarly, some abilities and disabilities may have a significant impact in one context, but not in others, and requirements around reasonable accommodation generally acknowledge this fact.

At the same time drawing on disability scholarship can also help to highlight the ways in which society and social, cultural and legal norms can be constructed differently or even reversed. Looking at Deaf culture can highlight the ways in which practices that are generally taken for granted – the emphasis of hearing over other senses, oral expression – can be downgraded in importance or even rejected entirely. In this context being Deaf becomes an identity that is not understood as a disability or illness but rather a different way of being, with this difference being inherently positive rather than a lack or absence of something. Within Deaf culture then there may actually be a reversal, where something that would be characterised or experienced as a disability becomes an asset, while not being competent in sign language becomes an actual impairment.

Along similar lines gender may be understood to inherently shape subjectivity and personality and therefore guide what one is conscious of while often not being consciously experienced at all, until one is confronted with a situation in which one’s gender suddenly makes access more difficult or impossible. Again, without necessarily ever being fully absent, this can often vary and fluctuate in severity and intensity from single-sex spaces that explicitly restrict membership to less obvious barriers like highly gendered dress codes that for example require the wearing of high heels and therefore make employment difficult for anybody unwilling or unable to present a specific gendered appearance. Considering the way in which gender and the potentially negative consequences deriving from it are highly dependent upon a person’s context and surroundings, it would seem to be a particularly important aspect of contemplating potential avenues for reform. As do the ways in which the spaces we inhabit shape us and our agency and ability or capacity to interact with the wider world.

At the same time it may be difficult to find parallels for some aspects or some of the effects of gender in the context of disability. Feminist theory and practice has clearly highlighted the ways in which society is structured and built around the devaluation of forms of labour that are generally perceived as feminine, care work in particular, while this work of course remains vital to the functioning of society. However, disability scholarship does offer critiques of the ways in which contemporary, neo-liberal states are built around notions of production and productivity that often exclude and stigmatise disabled people or those with significant long-term illnesses. Perhaps, then, by drawing these connections we can consider more broadly the ways in which capitalist societies value, exploit, marginalise, and stigmatise specific populations. Thinking across categories in this way may also account for the ways in which discussions around care work are increasingly shifting to also consider the disproportionate impact these issues have on migrant workers and especially women of colour.

Accessibility by design

In recent years, discrimination or oppression in the context of disability has become framed more strongly in terms of the ways society fails to account for the effects or realities of disability. However, what then makes some spaces more accessible for bodies with different abilities or with different genders? The concept of “inclusion by design”, for instance, suggests that spaces, institutions and initiatives should be designed to be accessible by the largest number of people. Importantly, this does not just mean adapting spaces at a later date when there are demands for access, but rather thinking from the outset about how spaces can be inclusive and accessible. This may also connect to critiques of the introduction of equality policies and the lack of action or concrete change that often follows. As such, inclusion by design requires attentiveness to existing power dynamics; it is not enough to simply declare that a space is inclusive, if this ultimately obscures persisting exclusion and discrimination. Could we similarly think about inclusion by design in the context of gender? Recent news stories about challenges or changes to existing school policies around, for example, school uniforms, have highlighted attempts to make some spaces more inclusive or have lead to them being perceived as more inclusive. Nevertheless, these are generally efforts to create inclusion after the fact rather than from the outset. Concurrently, some spaces, particularly spaces that are from the outside perceived as “women only” have a long history of including more diverse forms of gender. Part of what our project will be investigating is what makes gender boundaries more fluid and inclusive in some settings than in others, particularly in spaces that are otherwise perceived as fairly strongly boundaried.

Drawing on the point above, it seems vital to be attentive to the ways in which seemingly inclusive spaces can obscure prevailing power structures and inequalities. Within legal scholarship in particular there is a longstanding critique of efforts to make law more gender neutral, on the basis that while this has often a symbolic value it can also serve to distract from the ways in which both social life and law continue to work in specifically gendered ways, from determining parental rights and responsibilities to the likelihood of receiving a custodial sentence for criminal offences. In this sense law serves to create both gender-differentiated effects but also to maintain androcentric norms as can be seen in the context of care work. Keeping this critique in mind seems crucial in interrogating and imagining how some settings can be or become truly inclusive of all genders or of the dismantling of gender based oppression rather than simply gender-neutral. Perhaps this is the time to start thinking more explicitly across category boundaries rather than treating equality law as a fragmented and disparate system. It may also be possible to think about gender through disability to see gender as not solely relationally constituted. If we are to take the lessons learned from disability scholarship seriously, can this help us imagine a different future for legal gender? Can we think about how to address disadvantage, oppression and discrimination without the need for permanent, stable legal categories?