Sex self-identification and costly signals of assurance

Holly Lawford-Smith (University of Melbourne)

The UK Government consulted in 2018 over proposed changes to the Gender Recognition Act that would allow ‘self-identification’ for sex, by way of a single-step statutory declaration. New Zealand is poised to implement a similar change, and several other countries have already done so. Debate over this proposal has been either non-existent (there was no consultation in New Zealand, and disagreement from gender critical feminists receives very little publicity) or has focused overwhelmingly on the vulnerability of trans people. I focus on the specific issue of sex self- identification in law emboldening entry by transwomen into female-only spaces. I argue that focusing on the vulnerability of transwomen is unfairly addressing only one of the stakeholders to this legal and social change. I focus on the claims that female people have to spaces without male people, and argue that given the history and scale of male violence against female people, and the attitudes and behaviour of male people against female people, women have a strong claim to such spaces. Any law proposing to undermine this claim would need to provide women with sufficient assurance that they were not likely to face the same risks or threats they face in fully mixed sex spaces. I draw on the costly signalling literature to assess a strong, moderate, and weak gatekeeping requirement for legal change of sex: sex reassignment surgery (as is required in most states of Australia); living for at least two years ‘as’ the sex the person wishes to acquire (currently required in the UK); and single-step statutory declaration (proposed in the UK and about to become law in New Zealand). I argue that the first provides strong assurance, the second provides weak assurance, and the third provides no assurance at all, and so the latter, at least, is an unsatisfactory as a legal proposal for change of sex. I also say a bit about how to assess the tradeoffs over physical threat (e.g. sexual assault) compared to other kinds of threats (e.g. attitudes of toxic masculinity), and the extent to which threats of suicide should be a part of the discussion of transwomen’s vulnerability.