Ordinary meaning of trans

Rachel Saunders
5 min readMar 4, 2024
Photo by Pavel Danilyuk: https://www.pexels.com/photo/themis-sculpture-with-libra-8112201/

Before the law there needs to be an ordinary meaning of a concept or term that provides consistency for judges and juries, semantics that allow for a thread to be traced through case law and legislation. Yet, when it comes to gender and trans identities there is little historic case law to draw upon, with the ordinary meaning of sex based on societal assumptions and a singular case in English law, Corbett v Corbett. Law ideally seeks to find objective meaning of terms, having precision allowing for affective judicial decisions. Yet, as with all cultural artefacts, semantics are always evolving and changing. A crucial issue with the ordinary meaning of sex at law is that it removed any phenomenological understanding of self, relying on a 1970s societal construction of sex that still underpins the ordinary meaning of sex. Chromosomes, gonads, genitals, and gender expression bound sex in case law, even though there is no legislated definition of sex in statute. Despite laws such as the Gender Recognition Act 2004 and the Equality Act 2010 stating that gender reassignment is a protected characteristic, the reality is that this term was not defined in the act, leaving the courts to decide any potential ordinary meaning of the term.

This matters because while objective trans people exist in the world, the labels placed on trans people and their bodies is subjective. When I talk about being trans I have my own subjectivities that I state, with any other trans person doing the same. Cisnormative assumptions about trans identities are then projected onto trans bodies, with each cis person bundling their person understanding of sex and gender into the mix. While an ordinary meaning of sex may appear a useful tool to enable effective legal decision making, an ordinary meaning of trans would potentially exclude trans people due to the nature of such things. Indeed, a central critique of any ordinary meaning is that unless it evolves it becomes a quintessence of the moment it was incepted, a bind that holds rather than a bird loosed. What may be good for the goose is definitely not good for the gander.

Ordinary meanings emerge because people seek a normative understanding of a term, resulting in a series of legal fictions that over time diverge from society at large. Trans identities have developed in the public sphere since 1970 to such a point that what made legal…

--

--