Legal Fictions: Changing Sex by Changing Gender
by Miroslav Imbrišević
A couple of years ago the question ‘What is a woman?’ entered the public imagination. Germaine Greer said in 2015 that transgender women are not women, and the novelist Chimamanda Ngozi Adichie said in 2017: “A trans woman is a trans woman”. But the controversy about who falls under the category ‘woman’ doesn’t just originate with trans activists and feminist theorists – the law (in the UK) must also take some of the blame.
It may come as a shock to people to find out that the law sometimes relies on falsehoods – legal fictions – in order to promote justice. This is reflected in the legal maxim: fictio legis neminem laedit – a legal fiction doesn’t injure anyone. This means in practice that the law (or a court) allows statements to be made which are strictly false, and everyone involved knows this. This differs from outright lying, where someone is being deliberately deceived.
In company law, for example, we treat a corporation (in some respects) as if it were a natural person (a human being). This makes it possible for people to enter into contracts with a corporation or to take the corporation – a legal person – to court. A corporation has rights and duties, just like a natural person.
We find legal fictions in Roman law, in the common law, but also in continental legal systems. There is broad agreement about their usefulness, but there also is the odd dissenting voice. Jeremy Bentham calls them: ‘the most pernicious and basest sort of lying’.
Novel circumstances or societal change may lead to pressure to fit new phenomena into a pre-existing framework, because it is presumed that this will result in some social benefit and it would accord with the purposes of the law. The law then treats somebody or something ‘as if’ it were something else (or the opposite). An early example can be found in the Lex Cornelia (81 BCE) in Roman law. Roman citizens who died in captivity lost their status as free citizens – they were slaves. This meant that they did not have the capacity to make a will. According to the Cornelian Law such citizens should be treated as if they had died free men; in this way their will would be valid.
In 2004 the UK government introduced new legislation (the Gender Recognition Act, GRA) to help people suffering from gender dysphoria, so that their lives may go better. This legislation allowed people to change their gender legally and to obtain a Gender Recognition Certificate (GRC). But the Gender Recognition Act relies on a legal fiction:
Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).
There is a little bit of confusion in the above quote, because we normally use ‘male’ and ‘female’ to refer to sex (biology) and ‘man’ and ‘woman’ refer to the gender role (social presentation). By ‘acquired gender’ the law makers mean the gender role of ‘man’ or ‘woman’ (which is usually associated with ‘male’ or ‘female’ sex). One of the requirements before applying for a GRC is to have lived ‘in your acquired gender’ for two years, meaning that the lawmakers expected you to have adopted another gender presentation and changed your first name to accord with that gender during this time.
Although someone was born as a boy, having male sex markers and registered as such, they can apply for a new birth certificate (once they get a GRC) which will state their sex to be ‘female’ (and vice versa for people who transition to be recognised as a man). This is a legal fiction. The law treats a transwoman for all intents and purposes ‘as if’ she belonged to the female sex. But the transperson’s sex at birth hasn’t changed, neither has it been assigned wrongly. The midwife ascertains male or female sex markers, rather than a gender identity. The latter wouldn’t have been formed at the time of birth anyway, and if it were innate, as some claim, it couldn’t be detected in a newborn.
Why create this legal fiction? We associate a particular sex (female) with a particular gender (woman). If the law permitted a change of gender (woman), but insisted that the sex of birth (male) could not be altered, this would perpetuate the pain of people who suffer from gender dysphoria, or rather, body dysphoria.
The legislation gives transpeople the option to change their gender, to be recognised and treated as a woman (or man) in society. But the legislation cannot change the biological facts – irrespective of any gender re-affirming surgery the transperson may have. Though some people claim that it isn’t just the gender role which is a social construct, it is also your biological sex. Consequently, some transwomen claim to be literally (i.e. biologically) women. A variation of this view is that one’s ‘gender identity’ determines one’s sex. But then the notion of ‘sex’ as biology (and distinct from ‘gender’ as the social role) becomes meaningless. Gender and sex appear to be the same thing.
But the law in the UK still makes a distinction between women (born female) and transwomen (born male). And by doing so the law acknowledges the legal fiction contained in the GRA from 2004. A transwoman (with a GRC) acquires a similar (but not identical) set of legal rights and duties as a woman. For example, transwomen are not subject to abortion legislation, because they cannot give birth – but transmen are.
Subsequent legislation confirms that the 2004 GRA created a legal fiction. The rights of transwomen are constrained by the UK 2010 Equality Act. At present the ‘exemption clause’ in the Equality Act protects sex-based rights: it permits female-only spaces. This means that ‘discrimination’ (i.e. drawing a distinction) can be lawful when it has a legitimate aim – here, to protect someone on the grounds of their sex. For example, it would be lawful to exclude a transwoman from a group counselling session for female victims of sexual assault (Explanatory Notes to the Equality Act 2010: 157). This illustrates that the makers of the Equality Act acknowledge (implicitly) that the GRA relies on a legal fiction. If transwomen were literally (i.e. biologically) women, if there were no difference between them, then the exemption clause wouldn’t make any sense.
Such an exemption also holds for sports which use male and female categories. Transpeople may be excluded from competing in their newly acquired gender in order to insure ‘fair competition’ or to guarantee ‘the safety of competitors’. This again is an acknowledgement of the legal fiction created in the GRA.
This doesn’t mean that all transwomen are really men. It means that those who socially and/or medically transition, and thus acquire some markers of being a woman, are transwomen. They have changed their gender, but not their sex at birth.
Some trans activists and organisations in the UK are now demanding the removal of the exemption clauses from the Equality Act. If this were to happen, it would turn fiction into reality. Then all sex-based protections and female-only spaces would have to be open to transwomen. Transwomen athletes could compete in the female category. Female prisons would have to accommodate all transwomen prisoners, etc.
Rather than promoting the legal fiction that transwomen are literally women, we should try to create a third category for transwomen (or transmen) in those areas of public life, where their demands would disadvantage women and clash with the hard fought-for rights of women. Keeping the sex-based exemptions envisioned in the Equality Act is important because it reminds us that the 2004 GRA relies on a legal fiction. You can change your gender (presentation), but you cannot change your biological sex.
Miroslav Imbrisevic is a philosopher, formerly of Heythrop College/University of London. His background is in legal and political philosophy, but recently he has started working in philosophy of sport as well.
 But in US law a corporation does not have the right against self-incrimination.
 The phrase ‘for all purposes’ is short for ‘to/for all intents and purposes’, going back to English law in the 16th century. It means: ‘in every practical sense’.
 Advances in medical science may soon allow transwomen to give birth though – by creating a ‘birth sack’ or some such.
 There are transpeople who present as men (which is in accord with their sex at birth), but claim that their gender identity is ‘woman’. They don’t appear to experience gender or body dysphoria. It isn’t clear in what sense they are ‘trans’ (-itioning).