Abstract/Summary

This chapter considers the concepts of sex and gender in relation to law, and particularly in relation to claims for self-identification of legal sex and the replacement of ‘sex’ as a protected characteristic under equality law by the concept of ‘gender identity’. To date, discussions about self-identification of legal sex have taken place amongst a relatively small group of mainly Global North states (e.g. in Europe, north America and Australasia), often with very different legal approaches to the overarching topic and to the individual legal issues within their jurisdictions. Those debates often centre on human rights, referencing human rights mechanisms at the international arena, but with limited understanding or discussion of how those mechanisms work, the powers they hold, or how their jurisprudence influences the creation and interpretation of domestic law. At the national level in the United Kingdom there has been misinterpretation, misunderstanding and misrepresentation of the law by lobbying groups and other bodies that is only now beginning to be addressed and corrected by legal authorities. This chapter sets out the current position and history of sex and gender in English and international law to demonstrate not only that, in both jurisdictions, ‘sex’ and ‘gender’ have been treated as two distinct concepts, but that they should remain so. In doing so we aim to contribute to greater knowledge and understanding of what the law is and how it should be applied.