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Deciding legal sex
The UK Supreme Court is currently hearing a case to decide what the legal definition of sex at law in the UK should be. From a legal philosophical perspective in the UK this is an interesting point of law, yet it has profound implications for how all people in the UK will be legally treated according to their sex. If the court decides that “biological sex” has legal meaning it enforces the notion that there are only two sexes and that gender identity is on the same practical footing as belief. Under UK law this is unlikely to be the case as gender reassignment has an established legal history; what is likely to happen is that without a gender recognition certificate a person will be legally treated as their assigned sex at birth, their trans identity at the mercy of the rest of society. Philosophically this then begs the question who gets to decide what legal sex is and who gets to enforce it.
In mid-November 2024 a case emerged in the UK of a cis girl whose birth certificate registered her as male by mistake. Under current UK law there is no mechanism for her birth certificate to be amended to reflect her sex assigned at birth, meaning that she will go through life as if she is legally transgender until she can legally obtain a gender recognition certificate. Her case highlights the danger of trying to enforce a legal concept of sex at law without flexibility in the system. Courts are always the last resort…
