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Abstract

This article explores the contribution that the figure of economy can make to understanding gender in contemporary Britain, focusing on gender as a social quality and legal category that is produced, allocated and used. The article proceeds in two parts. The first part considers the politics of sex-based feminism and gender-as-diversity through an economic frame. The second part focuses, in detail, on one specific juncture where these diverging politics meet: decertification – a law reform proposal to dismantle the system for assigning, registering and regulating legal sex. Decertification is a controversial strategy. Advocates argue that self-expression and interpersonal communication, whether through gender or against it, is hindered by a state-based disciplinary certification system. Critics disagree. They argue that dismantling legal communication about a person's sex makes it harder to put categories of female and woman to remedial use. Drawing on other uses of certification, including commercial ones, this article suggests that certification not only communicates information about a process, quality or thing; it also contributes to their production. The impact of decertification on how gender is produced, what gets produced as gender and the uses to which gender is put are central to determining whether decertification is beneficial to a progressive transformative gender politics.

Keywords

Certification feminist politics figure of economy gender law registration

I suggest we think of the entities in the world as multifaceted in character, being simultaneously products, producer and process.

(Gunnarsson, 2017: 120)

Introduction

Conflict in Britain over who counts as a woman¹ has pushed gender categories to the forefront (see: Hines, 2020; Nicholas, 2021). While feminists have long (if episodically) debated the definition of woman, in recent years this debate has spilled into mainstream institutions, spaces and media (see: Jones and Slater, 2020; Pearce et al., 2020). Some argue that being a woman, man or other gender (identity) is a ‘deeply felt internal and individual experience’ (e.g. Yogyakarta Principles, n.d.).² Others argue that women and men are not self-determined identities, but biological sex-based groups, caught in a ‘socially constructed hierarchy’ (Fair Play for Women, n.d.) of gender relations (see also: Jeffreys, 2014). These two positions dominate current public debate, but other ways of understanding gender also exist. Important, for my purposes, are those frameworks which centre gender's societal qualities. These include accounts of gender as a system, language, performance, regulatory mechanism, institution and mode of interactional work that shapes and is also shaped by others (e.g. West and Zimmerman, 1987; Walby 1990: 2; Butler, 2004; Martin, 2004). While some of these accounts foreground social interaction, and others foreground structure, they depart from those accounts which currently dominate that start with the individual or group. Different accounts of gender make different socio-political interventions thinkable and sensible: from addressing language and meaning, to focusing on state politics and policymaking, to economic, technological and interpersonal approaches.

This article contributes to feminist analyses of gender and the politics of transformative gender projects by critically exploring a legal proposal to ‘decertify’ sex and gender categories in Britain. Decertification would remove sex from birth certificates and, while different versions are possible, the one explored here would lead people, more generally, to no longer bear a legally institutionalised sex or gender, eliminating in turn the need for a Gender Recognition Certificate (GRC) on transitioning (Ryan, 2020). Decertification would require revisions to laws that assume people have a legal (or legally intelligible) sex or gender; however, equality laws and policies could continue to operate to counter gender-based inequalities (including in relation to sexed forms of embodiment). Decertification is a speculative proposal (Cooper and Renz, 2016; Cooper and Emerton, 2020) not currently on the law reform table in Britain, although it has surfaced in several jurisdictions as a social movement aspiration.³ Its relationship to feminism, as I explore here, is also deeply contested. Decertification can ‘free’ people from state-imposed classificatory boxes, that are also asymmetric boxes. But withdrawing legal sex and gender status can also appear to bolster a neoliberal politics that treats people as consumers (or ‘prosumers’⁴) of gender identities or as flexible worker-resources unconstrained by specific sex and gender expectations.

This article does not seek to conclusively determine whether decertification would be a good or bad development. Rather, building on earlier work on decertification, it explores how everyday notions of economic processes can illuminate the stakes and strategies that such reform entails. The ‘figure’⁵ of economy elucidates contemporary politics by foregrounding gender's social, dynamic, plural and systemic qualities. Taking up the figure of economy here, I draw from an interdisciplinary economy/society literature in an analysis that is also indebted to extensive feminist work. However, unlike much literature that links gender to economy by foregrounding gender's contribution to other economic relations and systems, such as capitalism, here my focus is on how gender and its categories can themselves be understood as ‘things’ that are made, allocated and used, recognising too that these processes do not take place apart from other social relations, such as nationality, socioeconomic class, race and sexuality, but operate through them. As I explain below, I use the terms ‘making’, ‘allocation’ and ‘use’ to decentre capitalist markets as the imagined heartland of economic thinking. This makes it possible to use the figure of economy to explore, prefiguratively, what social relations – including gender but extending beyond gender – could become.

Figure of economy

In recent years, writers have drawn on economic idioms to explore domains of life not conventionally understood in these terms (e.g. Davies 1995; Bennett, 2010; Hendriks, 2016). Bennett, for instance, provides a richly evocative account of the historical ‘association of libidinal with monetary spending’ (2010: 93); and the ‘tradition of thinking sexuality through the trope of economy’ (2010: 94) (see also: Bennett, 2016). Yet, take-up of economic terms and frameworks to account for different areas of social life has also generated disquiet. One concern is that ‘Economy now commands the stage’ (Clarke, 2020: 18), establishing itself as the centre of human endeavour from which everything else flows. Another concern is that ‘economy’ becomes the animating term through which all life and relations, including gendered ones, come to be understood. Structuring and intensifying this concern is the elision between economy, on the one hand, and market, commodities, exchange, consumption and the rational self-interested actor, on the other (see: Feher, 2009). Certainly, from a progressive perspective, if social life is understood in marketised terms, this seems to channel human interactions towards competition, exchange, interests, quantification and profit. Performative problems also arise if depicting social life in market terms helps to constitute it as such (see: Mitchell, 2007).

In response to these concerns, I want to make some preliminary points, starting with the assertion that processes of making, allocation and use do not have to equate with competitive, profit-oriented exchanges. Non-capitalist economic frameworks exist, organised around commoning, gifting, solidarity, public welfare and sustainability (e.g. Gibson-Graham, 2006). Thus, my use of the figure of economy to consider gender relies on its capacity to include non-competitive care-based economies as well as capitalist ones. Working with the figure of economy also does not mean that its application to gender is metaphorical against some proper economic realm lying elsewhere. The economy is not being taken from a sphere where it properly belongs to one where it does not, an account that would bolster divisions between real and fictive economies (see also: Clarke, 2014), where markets in goods and services involve real economies, while gender's production and use (unless in the service of a wider ‘economy’) does not. More useful, here, is a Deleuzian approach that reads seemingly metaphorical applications of a term as instances of reterritorialisation, as concepts un-anchor from one set of exclusive uses to touch down (temporarily) somewhere else (see: Patton, 2006).

Taking up the figure of economy to make sense of gender and the contemporary dispute over gender classifications does not capture the entirety of the terms and imagery circulating through decertification's debate. Nor are the terms of economy especially evident in this debate. While allocative decisions and practices surface repeatedly in discussions about reforming how sex and gender categories are regulated, the relationship of such allocations to gender's production is far less frequently invoked. Indeed, it was this absence which prompted me to turn to economy, to consider what this figure could bring to understanding the political debates surrounding gender's reform. Sex registration at birth and gender recertification (through a GRC) are typically understood as administrative processes, in turn framing decertification as an emancipatory move to free gender-related categories from the state (see also: Katyal, 2017). Approaching decertification through the figure of economy decentres the state/non-state divide. Instead, it focuses attention on social processes of making and use, recognising that these are carried out by an array of bodies, sometimes in concert. This does not deny the significance of state law and government. However, it avoids mapping control/freedom onto a state/non-state dichotomy, recognising that the boundaries of what counts as state and non-state are also both contested and evolving (Cooper, 2019a).

With these preliminary points in mind, let me turn to the contribution that the figure of economy can make to understanding gender and gender politics. First, as many have explored, economy provides a rich repository of analytical and interpretive terms. Gender can be approached as investment, debt and capital (see generally: Feher, 2009; Allon, 2014), and this work is underway. However, given the decentring of market relations in this discussion, my focus is on economic terms which neither assume nor are specifically tied to capitalism. I therefore use ‘making’ to identify a broad, diverse and diffuse set of processes of crafting, assembling, manufacturing and fashioning.⁶ ‘Allocation’ rather than ‘distribution’ foregrounds the non-quantitative character of gender; its application instead of ‘exchange’ recognises that the allocation of gender categories, and, importantly, the second-order allocative effects that follow the allocation of gender categories, can take non-transactional forms, including through welfare distributions, gifting and self-authorship as well as appropriations and seizures. The language of ‘uses’ rather than ‘consumption’ also recognises that uses are not only about consumption-based depletion or the capitalist conversion of a thing into something else. For gender, use is integral to gender's making, sustainment and vitality – where use does not, necessarily (or even usually), mean using up.

Second, the figure of economy supports a framework that is normatively expansive and socially heterogeneous, avoiding some of the polarities that beset many contemporary accounts of gender's form; where gender is assumed, for instance, to be either structural or agentic; standardised or diverse; oppressive or expressive; good or bad. Attending to its economic aspects supports an account of gender that can embrace localised forms of invention as well as routinised, large-scale production-delivery systems; relations of production that are exploitative and those that are cooperative; uses that are coercive or destructive and those that foreground autonomy, choice and pleasure; attachments and commitments that are exclusionary and commodified and those that are inclusive, open and not capitalised. In other words, approaching gender through the figure of economy supports ways of understanding gender that are politically polysemic (gender can appear as good or bad, valuable or destructive), since what gender is – what is produced when gender is produced – is also subject to variation.

Third, the figure of economy foregrounds gender's durability and the interconnections that arise as gender's institutionalised qualities, relations and processes get made, allocated and used. Institutional gender may evolve, it may be plural in how it is manifested and imagined, but it is also persistent. The relations between making, allocations and uses are important and something the figure of economy, attentive to systemic interconnections, underscores. Without assuming a tight interconnected system where one part determines the others – for instance, that gender's production determines its uses – the figure of economy helps to elucidate the interrelationships between parts of a social process. This includes how gender's uses shape its production, and the viability and durability of different modes of making, allocation and use.

Future of Legal Gender research

To explore decertification through the figure of economy, my analysis draws on empirical data from the Future of Legal Gender, an ESRC-funded research project that ran from 2018 to 2022 (see: Cooper et al., 2022). The research took up an imagined legal proposal, treating it as if it were already on the law reform table, to address three sets of questions: 1) Would decertification be a progressive move from a feminist perspective; and what risks and challenges might its pursuit generate? 2) What could be learned about current investments and attachments to legal gender by studying a proposal for legislative change? 3) What might a research project's development of such a proposal do? The research adopted a critical perspective, centring on gender as a structuring formation that is imagined and actualised in ways that are also shaped by other social relations, including race, religion, disability and socioeconomic class – while attending to subjects’ intersectional take-up of gender as a highly modulated, more-than-binary language of selfhood, expression and relationship. Normatively, our research was shaped by post-capitalist feminist values of care, solidarity, ecology, public welfare and cooperation. This outlook and perspective inform my analysis of decertification here.

I draw on a data subset of seventy semi-structured interviews with equality personnel from trade unions, regulatory bodies, NGOs and local councils, along with staff from some women's services, to explore divergent views on de/certification, using the figure of economy to aid my analysis. Selection of interviewee organisations and subjects was based on three primary criteria: engagement with new gender politics and categories (e.g. council departments and trade unions that recognised nonbinary gender identities as well as self-identification); participation in fields that would be affected by decertification (e.g. sports, refuges and hostel provision); and divergence of views so that the research was informed by different opinions on gender, sex and decertification. Abolishing legal sex and gender is a policy question with transnational relevance. However, any assessment is specific to the jurisdiction in question. This research focused on England and Wales – a legal space riven by conflict during the project's lifetime over proposals to liberalise sex and gender's recertification.⁷ I begin the discussion by exploring two perspectives that dominated public debate: sex-based feminism and gender-as-diversity (Cooper, 2019b; see also: Nicholas, 2021), sketching their contrasting visions of gender's making, allocation and use. I then consider how these two perspectives responded to decertification as an imagined law reform proposal. Both perspectives inevitably include some variation. My discussion focuses on the prevailing common (or dominant) ground in each.

How sex and gender are made, allocated and used – views from sex-based feminism and gender-as-diversity

Sex-based feminism centres biological sex – deemed a natural stable input that gets converted into gender through socially institutionalised processes. For those adopting this perspective, sex matters (Williams, 2020; Stock, 2021);⁸ its categories ‘allow us to name a caste of people who have been oppressed and excluded from public life’ (Lawford-Smith, 2022: 47). While the process of becoming a woman or man is constantly topped up, the social production of gender is seen as continuous with the sex-based raw resources that give rise to it. One feminist NGO interviewee remarked, ‘Gender is built on top of sex. It's not something that you can separate off’. Gender is not ‘allocated’ – in the sense of being arbitrarily assigned – and even less is sex. Rather, sex becomes gender, in Britain and elsewhere, as the external social world sculpts biological difference to produce unequal subject positions, exploiting women's bodies for sex, care and social reproduction. How sex structures second-order allocations – what women and men receive because of their sex – has been extensively discussed. Wages, food, safety, space and power are identified as unequally distributed through gendered forms of accrual and transmission, involving compelled gifting (of time, bodies, labour) by women, and exploitative transactions and seizures (of space, bodies, time) by men.

While sex-based feminism includes some differences in perspective, in recent years its focus has been on recuperating sex as an immutable binary property whose properly recognised use is biological reproduction. Later, in this article, I explore some of sex's other uses for sex-based feminism – namely as a stable classificatory structure that identifies different needs and vulnerabilities. Bolstering sex and its proper uses through formal recognition processes becomes essential here for gender's dismantling. Sex-based feminism seeks to eliminate those uses which depend on aligning categories of women and men with stereotypical qualities or virtues; or which allocate other goods unequally based on people's membership in sex-based classes. A union official interviewee remarked, ‘Gender is a social construct. Gender is oppressive to everybody. It's oppressive to men. And the sooner we get rid of it, the better. … Your sex should not dictate the way you live and behave and how you dress. That should not be a “thing”’.

Sex-based feminism seeks to sever sex from gender (see also: Women's Declaration International, 2019: 4–6); gender-as-diversity, by contrast, seeks to free gender from sex (see also: Newman and Peel, 2022). Despite some differences in its accounting, gender as diversity converges around two denials: that gender identities give expression to natural forms of sexed embodiment; and that they should be subject to standardised binary systems of production, registration and qualification – allowing only two kinds of gendered subjectivity to have status. Gender in all its rich variety properly emerges when individuals can develop and express themselves within and through community (see also: Katyal, 2017). Large-scale processes that seek to standardise gender production (including through two moulds) produce inauthentic or faulty identifications, causing unconventional gendered qualities to be mislabelled or unaccounted for. Second-order allocative inequalities operate between those whose gender is recognised and those whose gender is not, including of participation, access, opportunities and income. Yet, these inequalities are not integral to gender. Gender may function as a site of domination and exclusion, but it also has other uses. An NGO interviewee working on trans policy issues remarked:
I think that, overall, people don't want a world where gender doesn't exist, but a world where gender maybe has less meaning; … there can be as many genders as there are people on this earth, and [] each individual person's relation to that is individual … Rather than removing it, just freeing it, and allowing it to be whatever it is without any major consequence to it.

Gender's production and identification, according to an account of open-ended variation, evokes very different uses to those that sex-based feminism foregrounds, with pleasure, self-expression and relationship, rather than exploitation and domination, being deemed central to gender's benign, (even) socially enriching, use.⁹ There are different ways of understanding this disagreement – familiar to other economic sectors. One is to see gender domination and exploitation as reflecting gender's historic and current uses, while pleasure and self-expression express its hoped-for future. Another is to see them as reflecting different (produced) things – the gender that is produced to support patriarchy is not the same gender that, for some, supports play and erotic exchange, for example. The difficulty here is that these competing perspectives largely land on the same subject matter: women and men – even as these categories and subjectivities are treated as parts of different systems of production, allocation and use, and are defined and bounded in different ways (for instance, in what being a woman or man entails). In the rest of this article, I explore this convergence in relation to the prefigurative proposal to decertify sex and gender – a law reform proposal that seemingly supports both the de-production of gender and its proliferation.

Reforming legal certification

Decertification is a response to a certification process that has remained little attended to, being presumed to fashion – at least when it takes place at birth – a seemingly neutral description and record. Yet, the modern system of birth registration, which developed in early nineteenth-century Britain, was historically far from neutral. Alongside the drive to establish a comprehensive registration system for statistical and biopolitical purposes, birth registration also made a more fine-grained mode of status confirmation possible (including in relation to sex and illegitimacy) that could help to legally enforce a range of socio-political rights and prohibitions, including of property transmission and ownership (see: Higgs, 1996; see also: Cullen, 1974; Basten, 2006). While birth registration in Britain has been amended in various ways, sex registration remains an integral feature, bestowing on infants an enduring legal status as female or male unless formal transitioning takes place.

In recent years, some countries have introduced reforms to simplify gender transitioning procedures (moving, for instance, to a self-declaration model); some have converted gender registration into an optional entry on birth certificates (as in Tasmania) or have established recognition for gender identities other than as women and men – at least for specific documents or purposes (Clarke, 2019; Holzer, 2019; Quinan and Oosthoek, 2021). But in England and Wales (my focus here), legal reform along these lines has not taken place.¹⁰ In 2004, the Gender Recognition Act introduced a process for changing legal gender and sex. Since then, attempts to significantly reform the law, including through the introduction of a more flexible (or plural) approach to sex and gender categories, have been rejected by Conservative administrations. The discussion of decertification that follows is based on perceptions of what might follow legal abolition of assigned sex and gender markers, drawing from research carried out between 2018 and 2022. Talk about legal ‘gender’ is, however, controversial, with some feminists claiming it is sex rather than gender that has legal status. While, technically, ‘sex’ is registered at birth, this gives rise to a presumed-to-correspond gender from the perspective of public agencies, corporations and many others. Some laws, employers and service providers treat the terms ‘gender’ and ‘sex’ as synonymous. Obtaining a Gender Recognition Certificate (GRC), which gives rise to a change of legal sex (see Gender Recognition Act s. 9(1)), also, notably, depends on ‘living in the other gender’ (s. 1(1)(a)); in other words, reversing the sex–gender order presumed to follow birth, for a GRC changing one's social gender precedes changing one's legal sex.

In the discussion that follows, I start with gender uses that are supported by certification's communicative function. I then consider how certification goes beyond communicating what a thing is, to contribute, in different ways, to its production. Approaching de/certification through the figure of economy is helpful here in bringing other certification processes to the fore. From organic food and fair trade to dangerous dogs, kashrut (kosher food) and degree classifications, these other certificatory processes provide parallels, counterpoints and thinking prompts for assessing how sex and gender classifications are made and used. Since the certification of sex and gender is both naturalised and ubiquitous, the political, fluctuating and partial character of other kinds of certification helps to identify some of the stakes that certification and its dismantling invoke.

Putting certification to use

Certificates communicate. From degree certificates to fire safety certificates for residential care homes, to certificates denoting correct ritual slaughter, certificates communicate information about the category that a process, thing or person belongs to (which can also be a ranked category, as university degree certificates attest). An important quality of certification is that it provides information not easily read off the thing, practice or experience.¹¹ This might be because specific identifiable elements cannot produce a meaningful summation of the whole, for instance that a building is firesafe or the quality of a student's performance. Alternatively, it might be because the qualities in question cannot be determined immediately or through non-specialist knowledge: for instance, whether meat is organic or kosher. Certification communicates a specific authorised backstory – of where a subject or thing has been, and what it has been through, to attain the certificate. For this reason, users may seek access to the information that certification provides, although in certain circumstances accessing this information may constitute a privacy breach, particularly where status certification follows a minoritised rather than dominant route.¹²

Certification avoids knowledge-seekers having to investigate. So long as they are trusted and relied upon, certification procedures, and their attendant classifications, provide the focus for status determination, displacing scrutiny (at least in theory) from the thing, quality or person themselves. Several interviewees identified this as a positive feature of sex registration. Yet, certification's contribution to determining sex and gender is far from straightforward. Does certification contribute to sex and gender's production; does it just provide information on an already determined characteristic; to what extent is it used, in practice, to identify a person's sex or gender? A union official commented, when interviewed:
Some trans people have a Gender Recognition Certificate, some trans people don't, but their access to gender spaces is more determined by whether or not they’re read as a cis man or as a cis woman. How people see you is much more important than what piece of paper you have … Very few people have to demonstrate their gender on a birth certificate in order to access a gendered space. This is one of the very interesting things about single-sex spaces.

Others we interviewed agreed that birth certificates were little used to evidence sex in England and Wales (see also: Renz, forthcoming). However, several interviewees described their existence as a background guarantee – an authoritative declaration that a person had a legally established sex (or gender), that could be asked for when required.

Yet, the question of how (and whether) certified sex is used begs a more general question; namely, what is it used for? Certification may communicate information that cannot be reasonably attained by its user in other ways, but the value of communicating a person's legal sex or gender depends, at least ostensibly, on the uses to which it is put. Here, certification seems to support certain uses of sex and gender rather than others. Yet views on what these are diverge. For critics of certification from a gender-as-diversity perspective, certification supports gender's disciplinary use at the expense of self-expression and pleasure. However, feminist supporters of certification described it as having remedial use, while making little difference to the goods men accessed and the ‘bads’¹³ women experienced. A women's rights expert commented, ‘I think one of my real anxieties is that you would end up recommending that women would lose their sexed status, and I think the only people who would lose from that would be women. Men wouldn't … They would still be seen as men’.

Male status and masculinity were identified as giving access to goods, including higher pay, greater leisure time, social status, workplace seniority and access to physical and temporal spaces. However, in contemporary Britain, this preferential access was not seen to derive from subjects’ formal legal status as men. In other words, the classificatory knowledge produced by sex certification did not directly generate benefits (in terms of opportunities, rights and resources etc) to people classified as men. Decertification, therefore, would not undermine these preferential second-order allocations. This did not mean that male status was unrelated to the allocation of specific goods. Sex-based feminism saw male classification at birth as aligning with men's superior social status. However, goods associated with masculinity were, for the most part, tied to social and biological processes and the ‘gender capital’ these provided (Huppatz and Goodwin, 2013), to normative assumptions and standards (leading male subjects to be the measure in design, medicine etc), to men's physicality and social ‘gifting’ networks (which led men to be recipients of others’ esteem) and to male subjects’ readiness to appropriate or make claims on space, time, attention and other bodies, rather than to legal classification. As one union official said, ‘I saw someone yesterday [who] knitted red whenever men spoke, and green whenever women spoke. Can you imagine how red that scarf was!’.

Coterminous with men's allocative advantages were the bads that accrued to women – such as poverty and violence. For many interviewees, however, including advocates of sex-based feminism, these bads were not contingent on the communicative work of sex certification. One interview analogised decertification to ‘taking a number plate off a car’ – a move seen as irrelevant to the pollution that cars caused. Where the communication function of certification was identified as making a difference to sex and gender's use, however, was in three other contexts.

The first concerned ‘good’ governance, which relied on sex- and gender-based sorting for activities such as body searches, data collection, security and record-keeping, among others. According to a union official we spoke with, ‘The state has to provide services and manage society. It can't do that if it doesn't have a sense of who are the people that it's dealing with’. A second, more explicitly feminist context concerned the remedial (or ameliorative) use of sex and gender status to manage gender- or sex-specific spaces, activities and opportunities (see: Cooper and Emerton, 2020). Here, certification provided a communicative device that, by authoritatively establishing standardised classes of women and men, allowed scarce goods to be allocated to women, either through using their legal status explicitly or, more typically, by relying on it as a background guarantee or norm (that women as a stable intelligible category existed). For those legally defined as women, valuable targeted opportunities and provision became available. Consequently, it was feared, if decertification stopped external bodies from authoritatively and confidently being able to ascertain who was a woman (and who was not), sex and gender categories would become much less helpful in reallocating scarce goods. A union official said, ‘There are rights enshrined in the Equality Act to sex. If you say that sex is no longer a legal fact then you lose that – I mean, potentially, you lose those rights’.

Critics’ fears centred on rivalrous goods that would become non-excludable. Take-up by free riders opportunistically claiming to be women, it was argued, would occur as people took advantage of open access to a sex or gender category despite lacking the qualities that gave the category meaning (such as category-related disadvantages). One council equality official remarked, ‘If there are grounds for people to suspect that a particular individual is being disingenuous, then I think perhaps the legal right does have to exist for people to be able to exclude somebody, if there are grounds to suspect there is – somebody is actually abusing the system’.

Elsewhere, I have explored different ways of managing allocative advantages without relying on legal membership in a class (see: Cooper, 2022a). Here, therefore, I want to turn to a third context where the communicative function of certification was identified as important in designating and distinguishing subjects according to a binary framework: women's safety. Women's protection and recovery from male violence and harassment, it was argued, required sex-specific spaces (see e.g.: Ingala Smith, 2019). For women-only toilets, changing rooms, prisons, refuges and hospital wards to provide this security, those using and running them needed to be able to, confidently and firmly, categorise people's sex so that male users could be excluded. Certification's protective function was also seen as beneficial in other contexts where category membership might be challenged.
You can be a woman, but people might not perceive you to be a woman and could object to you providing personal treatment in a care home or a hospital. And you can turn around and say, actually, I am a woman, this is ridiculous. It comes back to society's stereotypes of what a man should look like and what a woman should look like. So, in some ways, it [legal sex for reasons of occupational requirement] could protect some people. (Equality adviser, charity)

Availability of a formal state-endorsed status enabled people to authoritatively assert the correct category for themselves or others when it came to accessing or allocating second-order goods. Yet, justifying certification because it distributed people to the correct provision or place excluded those without the requisite guarantee. This affected people who transitioned informally – living as women or men without obtaining official reclassification through a GRC – and those who curated themselves according to categories, such as genderqueer, agender or nonbinary, that remained unrecognised for the allocation of many goods.

Allocating sex and gender through plural certification systems

The information deficit of a certification system which excludes certain genders from its account can be remedied in different ways. One is to introduce additional gender categories. Another is to pluralise the certification systems that are in force. This can involve abolishing a state-based system to allow for non-state-based alternatives, but a state-based certification system can also make space (if often limited space) for alternative classification processes – a move that may also protect its own legitimacy over time.

Certification is expected to provide reliable information about category membership.¹⁴ Its efficacy depends on user trust, and if this lapses, a certification system may become increasingly bypassed and ignored. For sex and gender, one way that English law has sought to sustain buy-in has been through permitted exceptions so that legally certified status does not exhaustively govern how sex and gender categories work for allocating access and opportunities. In limited circumstances, women-only services, for instance, may exclude trans women – including trans women who are legally female (Sharpe, 2020). Some sports can also. Many women's elite sports have entry qualifications based on testosterone ceilings rather than certified sex – an approach that has also faced critique (e.g. Karkazis and Carpenter, 2018; Karkazis and Jordan-Young, 2018). A less formalised withdrawal from a national system of certified sex involves its circumvention by individuals and organisations on political, welfare or religious grounds. In the late 2010s, some public agencies and trade unions reoriented their gender-specific provision and policies towards self-identified categories, including nonbinary (see: Cooper, 2020). A union official told us, ‘We have made a decision as a union that we will accept people's right to self-identify’. Conversely, conservative religious authorities also asserted their own determinations of sex and gender; as did some feminists seeking to sustain binary sex-based demarcations.¹⁵

Within (and sometimes despite) a national state certification system, plural classification and recognition systems operate, including as unofficial interpellations. One potential consequence of decertification might be to increase their presence and influence. Assessing the operation and effects of community labelling schemes becomes therefore an important element in assessing the effects of decertification. Moves to outsource and pluralise certification have been evaluated in various commercial contexts. Academic studies have examined how such schemes operate; who makes decisions; the criteria deployed; relations of accountability, evaluation and control; and whether certification processes are peer-based or hierarchical.¹⁶ Relations between different certification schemes also come to the fore – in how they coexist, interact and overlap. Certification schemes can be mutually influencing, and governmental bodies and law can also be influenced by non-governmental definitions and categories. The growing legal and policy recognition of nonbinary as a gender category in response to new community norms in several jurisdictions is an example of this. At the same time, state law can set limits or restrictions on the criteria that community labelling schemes can use – a feature of decentred regulation that is often ignored in discussion of sex and gender de/certification.

What emerges, more generally, from a pluralist approach to how gender and sex categories are allocated, and the criteria on which this is based, is the possibility of context-specific certifications (Clarke, 2015: 829–830), where someone could be recognised, for instance, as female for sporting purposes, as nonbinary at school and as male in their religious community. This makes sense if we focus on uses of gender and sex categories – where how someone is certified depends on the specific localised use to which this classification is put, such as fair competition, self-expression or religious morality. However, it also creates complexity for bodies straddling different uses: for instance, local authorities who adopt a self-identification approach when it comes to people accessing their services, but resource religious communities that adopt a conservative approach to gender and sex categories. This kind of dilemma is not new. It has beset liberal state engagement with conservative religious communities over their responses to lesbian and gay sexuality, for example, for many decades. It is also not just an issue of managing competing categorisations and the information they rely upon and create. What different bodies’ responses to sexuality also reveal is something further – mechanisms for ‘knowing’ what a person's sexuality is, whether through equality monitoring forms, surveys and registration, cannot be entirely divorced from the mechanisms that produce sexuality as a social category and phenomenon (Browne, 2016; Collier and Cowan, 2022).

What does certification create?

Focusing on the communication work done by certification, and how it gets used (or not used) by different bodies as they make use of gender and sex, is only part of the story. While it has received the lion's share of attention from critics of decertification, it is also important to consider certification's contribution to producing gender, sex and wider sociolegal assemblages (see also: Braunschweig, 2020).¹⁷ Certification does not just help bodies to know which box to put someone in when it comes to allocative decisions; it also helps to shape the person and the box. A senior figure in an equality NGO said:
Even if we are talking about the systemic oppression of women, having a box at birth that says ‘female’ means that you are expected to be more compassionate, more caring … So that box reinforces that there is a role you are expected to play and breaking that role will either be an uphill battle or will actually be impossible because of the boxes or [because you] … face discrimination because you don't fit what is expected of your box.

I want to consider a little further here what certification brings into being. Feminist work on the productive effects of institutional discourse is well established, and the productive work of certification goes alongside and with other documentary practices, such as the census, passport applications or job forms, which require membership in sex and gender categories to be recorded and, in the process, reconfirmed. Birth certification, however, may be seen to have a specific distinctive force, being initiated at birth, deployed for a variety of purposes throughout the life course and expected to remain broadly stable with limited amending opportunities.

And yet, as I have identified, considerable disagreement exists over whether birth certification ‘produces’ an individual's sex – as those who describe sex as ‘assigned’ at birth suggest – or simply records and registers a bodily form produced by other means. One interviewee said, ‘I don't think the law assigns a sex to people. I think the law recognises people's biological sex’. For feminists who reject the claim that birth registration ‘assigns’ or produces sex and gender, decertification is a distraction or mask. It won't change how gender is made and used but simply undermines attempts to track and identify its presence. A policy adviser in an NGO remarked: ‘I think that … it comes back to how much you eradicate the unreal differences placed on the sexes by gender, by pretending that the difference in sex doesn't exist. … On a personal level, I don't find that [pretending] appealing, because it feels untrue’. Anchored in a distinction between the real and unreal, where the oppressive inauthenticities of gender's production mask the natural establishment of sex, decertification appears regressive and risky. Decertification impedes the ability to demonstrate how sex becomes gendered – how lives become lived unequally as birth-sex, not certification, within patriarchal society, affects second-order allocation processes (namely, what is differentially allocated based on a prior sex status), and the other uses to which sex and gender are put. In conditions of patriarchy, certification is an important signal. This point was made by a policy worker in an NGO: ‘In a patriarchal world, which is set up on the basis in some ways of sex, we would have a problem if we didn't have the ability to legally distinguish between sexes’.

Yet, in other, quite different contexts, certification is assumed to contribute to the production of what gets certified. Callon and colleagues write: ‘The characteristics of a good are not properties which already exist and on which information simply has to be produced so that everyone can be aware of them. Their definition or, in other words, their objectification, implies specific work’ (2002: 198–199). The certification of goods (and bads) may be desired or may be resisted, but this is largely due to certification's perceived impact on the supply, production and take-up of the thing itself. Take ‘dangerous dogs’. The Dangerous Dogs Act (DDA) 1991 (now amended) established breeds that were prohibited from being bred, sold, gifted, unmuzzled in a public place or abandoned (DDA s. 1(2); see also: Hood et al., 2000; Hallsworth, 2011; Forster, 2021). Categorisation as a dangerous dog communicated, officially and culturally, the breeds deemed intrinsically dangerous (a status that was also disputed), while communicating something about an individual dog as well – whether it came within this category. At the same time, while a dog was unlikely to perceive itself as more dangerous through being classified as such, being classified as a dangerous dog was intended to materially impact on their reproduction (since dangerous dog breeds should not be bred). In a more mediated way, the legal division of dogs into dangerous breeds and others could affect how owners treated their dogs – a counter-cultural form of prosumption to the extent that owners encouraged pets defined as dangerous dog breeds to act aggressively.

Certification of organic food, fair trade, genetically modified crops or products made in the West Bank are other examples where certification is deemed to do more than communicate information about an already settled thing. Indeed, a key motivation for those seeking to prohibit certification, in such contexts, is that certification (whether to encourage or to dissuade purchases) intensifies attention towards specific qualities. This is not an informational project to simply help consumers make choices based on their already held preferences but to nudge them to make choices based on the qualities that certification identifies.¹⁸ Trentmann (2007) describes how food and product labels have a long history of deployment to support moral and political projects – from ‘buy British’ to boycotts. The performative effects of certification also go further. Writing about sustainability certification in Sri Lankan tea production, Amila Munasinghe and colleagues (2021: 254) describe how certification identifies certain procedures and qualities as crucial to the product's definition (see also: Mutersbaugh, 2005). In a similar vein, Evans and Miele (2017: 242) write:
Ethical food labels do not only depict or reinforce pre-existing ethical concerns; they also help to generate new ones. … For example, labels help to shape what matters of concern around food can and cannot be; they separate and group together different matters of concern in new ways; and they help to determine who has the right to be concerned.

Certification, then, is both an exercise in representing a thing and a contributory element in its production and placing within a wider network. Certification can affect what counts as organic food or a university degree; and it can shape how these things are made. Making and use here are intricately entwined as the narrowing or broadening of first-class British degree classifications also illustrates.

In the case of sex registration at birth, certification establishes the enduring significance of gender as something that is made and used, where categories of female and male operate as social properties, and as individual attributes defined apart from specific contexts. As such, certification of sex is both normative and an anticipatory representation of what someone will become. While it is at one level a discrete act, it operates within a temporal flow of gendered projections and fantasies that it clasps together (see also: Mikdashi, 2014). A local authority personnel officer commented: ‘By having a legal status, it kind of sets a precedent, in terms of what it means to be a woman or a man, or nothing, or something in between’. Like other socio-political certifications, determinations of birth sex foreground certain selection criteria – genitals observed at birth – rather than others, where the ‘matters of concern’, in Evans and Miele's (2017: 242) words, are penetrative capacity and a reproductive future (see also: Cannoot and Decoster, 2020). On this basis, people are grouped and separated.

And yet, sex certification at birth does not produce gender once and for all. Rather, it feeds into complex gender ‘use-chains’, as nurseries, schools, leisure facilities, employers and multiple others take (up) the sociolegal gendered subjectivities passed to them, and then, having done their own work, based on the uses to which they put gender (child development, pedagogic management, competition, modesty, extractive skills), pass their gendered subjects on. The force of certification's contribution to this process was both asserted and countered by those who would prefer to see gender identities emerge as slow, self-directed acquisitions (see also: Newman and Peel, 2022) driven by uses of personal expression, development and pleasure. Several interviewees criticised sex certification for pre-empting and so impeding (even if it could not completely forestall) more gradual forms of gender emergence. A trans NGO staff member said:
I think why label someone at that point [birth]. The parents will do what everyone else does, they look at the genitalia and they will make assumptions. But at least [with decertification] you haven't got it in writing, … people [may instead] start just thinking of this as a little person and they will see who that person is going to be later. I think that would be much better.

But in unplugging gender's making from the processes of certification which have standardised its variant categories and held its classificatory structure in place, other questions emerge: what is the gender now being made for self-expression, personal development and pleasure? Can it be made in ways which avoid inserting masculine and feminine as key component parts given the baggage they bear? And how is this gender to be made; what social processes should contribute to its creation and development once certification at birth is abolished?

Conclusion

This article has explored gender as something that is made, allocated and used, taking up the figure of economy to trace two different depictions of the relationship and splits between sex and gender. Sex-based feminism seeks sex without gender, treating sex as a natural quality that is neither allocated nor assigned. It seeks to redistribute goods between women and men, and to protect women from bad sex and gender uses. Gender-as-diversity, by contrast, detaches gender from sex. Opposed to top-down, standardised large-scale production systems controlled by the state, gender-as-diversity aspires for gender's qualities to be, instead, individually crafted, and identified, within enabling community networks. Tensions between these approaches, with their different accounts of what is produced when gender is produced, come to the fore with decertification – a controversial legal proposal to abolish sex and gender as features of legal personhood.

Contemporary opposition to decertification has largely centred on the informational value of sex registration within a communicative process that facilitates governmental modes of ordering, remedial action to redistribute social goods and the protection of women by confirming who counts as what and by safeguarding this designation. In other words, sex certification is associated with neutral or equality-enhancing forms of sorting, such as for sports or positive action purposes, where women are currently seen to receive ringfenced opportunities – an allocation or granting that does not derive from market exchanges or seizure, but from a status that is legally defined, recognised as disadvantaged and treated as certain. Certification, however, does not just communicate information about a characteristic, thing or process that remains untouched and unchanged by its certification. Commercial literatures on certification have explored how integral labelling systems are to the production of qualities, rankings, relations, places and things. Analyses of certification's effects on these other social and commercial processes provide some tentative suggestions or at least ‘thoughtways’ (Renz and Cooper, 2022) for what decertifying sex and gender might accomplish.

Decertification's impact on the production of gender (and the gendered character of sex) in England and Wales is, of course, impossible to predict, complicated by questions of timing, context and the many social relations – certified and uncertified – that go to make up gender and its uses. Decertification may seem to establish a less regulated system of production, allowing greater flexibility and institutional recognition (or acceptance) of a wider array of gendered subjects. Its introduction may also support the context-specific and plural use of gender (and/or sex) labels, as assumptions of a stable alignment between body shape and categorisation unravel further. But if gender's production is driven by its uses – and here, I am thinking of exploitative uses as well as (and co-constituting) pleasurable or self-expressive ones – targeting relations of production is not enough. Thus, initiatives to tackle how gender is made need to combine with initiatives to tackle the oppressive ways in which gender and other relations are used.

How use, production and allocation interrelate is something that the figure of economy foregrounds along with the dominant and minoritised forms these processes take, and the interactions and knots between them. The capacity to represent this complexity, and its dynamically changing character, is important. As a figure of market capitalism, the economy provides an important critical framework for analysing gender and other social relations in terms of competition, exchange, investment and exploitation. Hopeful changes, however, remain outside this framework unless they are recuperated in critical terms as problems to be exposed and addressed. What a multivalent approach to the figure of economy offers, by contrast, is a more expansive set of thoughtways that can attend to progressive and exploitative processes, as well as the ravelled relationship between them. This discussion has focused on what the figure of economy can bring to understanding gender, but what it also prompts us to ask is how an analysis of gender in these terms might advance our thinking about the figure of economy.

Footnotes

Acknowledgements

I am grateful to John Clarke, Margaret Davies, Didi Herman, Janet Newman and the Feminist Theory anonymous referees for their immensely helpful comments on earlier versions.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the Economic and Social Research Council (grant number ES/P008968/1).

ORCID iD

Davina Cooper

Notes

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De-producing gender: the politics of sex,decertification and the figure of economy

Abstract

Keywords

Introduction

Figure of economy

Future of Legal Gender research

How sex and gender are made, allocated and used – views from sex-based feminism and gender-as-diversity

Reforming legal certification

Putting certification to use

Allocating sex and gender through plural certification systems

What does certification create?

Conclusion

Footnotes

Acknowledgements

Funding

ORCID iD

Notes

References