Making sex: law's narratives of sex, gender and identity

Abstract

From the 1970 decision of Corbett1 onwards, legal narratives established two modes of categorising complex social identity in relation to sex and gender. These narratives responded to complex identity questions by attempting to simplify identity by limiting it to biological factors or anatomical and psychological factors. I demonstrate that the law's struggle to 'make' sex is reflected to a certain extent by feminism's trajectory, in that feminisms have also attempted to grapple with these complex questions, and often opted for the same simple solutions to the problem of understanding gender, sex and identity. The aim of this paper is to show that some strands of feminist theory, specifically post-structuralist feminist theory, can produce a more progressive and constructive approach to determining sex in their ability to illuminate the complexities of identity. In particular, my aim is to urge those courts that 'make' sex to consider these complexities and the implications that flow from placing transgender people into rigid arid narrow categories.