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Gender fluidity and the law

Published: 
Sunday, August 19, 2018

Gender fluidity allows individuals to be categorised, either by themselves or by society, as neither man nor woman.

Presenting an identification document which does not accurately reflect one’s sex and is incongruent with one’s gender identity can prompt invasions of privacy, prejudice, stigma, violence, discrimination, and harassment in a wide variety of settings, including—employment, education, hotels, health care, housing, government agencies, and law enforcement.

Nonbinary gender identity is already an option on drivers’ licences in Oregon. Washington, DC, New York, and California all permit nonbinary residents to record a gender-neutral option on all relevant legal documents, including birth certificates.

The 2021 Canadian census hopes to capture the prism of genders across Canada. The plan is to offer a third gender option besides ‘male’ and ‘female’. Statisticians at Statistics Canada (SC) are unpacking age-old notions of sex, sex at birth, gender, and gender identity according to Marc Lachance, director of the social and aboriginal statistics division.

Laurent Martel, director of demography at SC, wants all Canadians to identify themselves within the census. Feedback after the 2016 census from LGBT+ advocacy groups on the present binary gender options suggests that the census dataset is imperfect.

To test its assumption, SC first floated the non-binary gender option in an opioid awareness survey. Respondents were asked what their sex was at birth and what their gender is at the time of taking the survey: ‘male,’ ‘female,’ or ‘please specify’.

The new census hopes to identify people whose current gender was not reported exclusively as male or female, or those reported as being unsure, or people who were reported as both male and female, or neither male nor female.

Canada has set aside $6.7m (£4.97m) over five years to establish a ‘Centre for Gender, Diversity and Inclusion Statistics’ to fill the gaps in its data. This will enable the Government to fund certain programmes and better serve all citizens.

Recently, a court in the Netherlands advised lawmakers to officially acknowledge a ‘third gender’ after ruling that a Dutch citizen was allowed to register as neither a man nor a woman at birth in 1961. This person’s gender could not be determined at birth and the parents decided to register the person as male.

In 2001, the plaintiff underwent medical treatment and changed gender to female. Eventually, it also turned out that the female gender did not fit the person, whose personality is experienced as gender-neutral, the court said. This meant feeling neither like a man nor a woman.

The judges recommended the recognition of a third gender and amendments to the law to enable the registration of a third gender.

In the UK, only male and female genders are recognised in law. People can legally change their documented sex—but only to male or female.

Under the Gender Recognition Act 2004, applicants have to be over 18, diagnosed with gender dysphoria, have lived for at least two years in their acquired gender and intend to live permanently in their acquired gender until death.

In 2016, the House of Commons’s women and equalities committee argued for creating a legal category for people with a non-binary gender identity. In its reply, the Ministry of Justice announced in July 2017 that it would initiate a public consultation. This has since stalled.

In May 2017, France’s top appeals court ruled against offering a ‘neutral’ gender designation to a 66-year-old psychotherapist who at birth could not be identified as either male or female but who was officially registered as a man. The French court said the distinction between male and female was a cornerstone of social and legal state-space and that recognising a third gender would involve uncountable legislative amendments.

In India, Laxmi Narayan Tripathi fought to convince India’s Supreme Court to recognise a ‘third gender’ in 2014. The court ruled that it is the right of every human being to choose their gender. Guna Yala is an autonomous archipelago of 300 islands off Panama’s eastern coast. A typical Guna wedding includes a ceremonial abduction of the groom—not the bride. The young man then moves into the bride’s home.

Thereafter, his work belongs to the woman’s family, and it’s the woman who decides whether her husband can share his fish, coconuts or plantains with his siblings or parents.

In Guna society, women are property owners and decision makers, so it is not unusual for boys to become ‘Omeggid’ and take on female responsibilities.

Humanity has slipped away from its original sexual organisation of society as it inches towards a genderless mortality into eternity.

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