The UK Gender Recognition Act 2004 - Essay Example

UK Gender Recognition Act 2004 Introduction: “One is not born a woman, but rather becomes one”. (Butler, 3). This particular phrase makes it clear tous that human beings are not born with a gender; they are gendered by the society. Most of the people confuse the meaning of sex and gender. Gender to most people means the same that is they limit their thought to mere male or female. The biological definition of male and female is not the same as defining gender. Rather gender which constitutes men and women are social categories than mere biological entities. On the other hand it should be noted that male and female on the contrary are biological entities. In the present age the biological distinction between male and female do not coincide with the social distinction of man and woman. The use of biological criteria to distinguish between the genders is a mistake because gender is essentially a social construct. This is because men and women are social beings and it is essential that they are categorized based on social constructs and science should not be used for the task. (Roughgarden, 23). Overview of Theory: The sex difference approach is certainly an essentialist approach. Essentialism regards gender as a fundamental and essential part of every individual. Bohan says that essentialism sees gender as a set of properties which is present within an individual in the form of personality, self concept and traits. The essentialism approach views gender as noun that is a quality which is innate in an individual. According to the essentialist approach it is believed that women have less intellectual capacity compared to men with regard to mathematics and other areas which involves logical abilities. Most religions in the world adhere to the essentialist approach in order to continue the hegemony of the power group that is the men folk and as a result they do not allow the more creative construction of gender roles and this in turn triggers the trouble which the gays, the bisexuals and even the women face in many religious groups. (Butler). Essentialism tries to locate fundamental characteristics between men and women as traits that are innately present within an individual and from which the individuals cannot come out because they are men and women. Although during the early phase of contemporary feminism the distinction between gender and sex was created but the essentialist approach denies the differentiation and rather brings in a lot of confusion and chaos with regard to the differences between gender and sex. It can be said that the essentialist approach still uses the traditional difference between a man and a woman based on their biological difference. (Richardson, Caplan and Crawford, 86). According to the Post Structuralists approach gender is essentially a social construct. The post Structuralists ideas of gender is that gender is a kind of performance with no real basis. This concept actually rethinks linguistic structuralism instead of completely rejecting it. Foucault was one of the most important figures in developing the theory of post structuralism and gender. Foucault believed that the idea of self surveillance have become very common not only in the prisons but also in the society. For instance children learn to control and regulate their bodies’ right from the childhood according to the expected norms of the adult society. The theory emphasizes that representation is everything in the society. Woman is a social construction of the society. Foucault in his explanation of gender has gone on to say that particular set of ideas or meanings have a lot of effect on the bodies that is he tried to say that our bodies behave according to the particular ideas and meanings which are associated with it. Foucault’s work has received criticism because he has emphasized on docile bodies and material things. At the same time it cannot be denied that the essence of gender construction is dependent very much on the meanings and materials that exist in the society. (Holmes, 71). The deconstructionist approach of gender says that there should not be any gender identity. The gender deconstruction also includes doing away with the system of gender dichotomy. It is a system by which women are no more considered inferior to the men. At the same time even men can escape from the forever macho image which they have to put on forced by the demand of gender identities. Gender identities attribute particular roles to men and women and they are supposed to stick to it in order to fit into the criteria of men and women but the deconstruction of gender identities says that men and women will be exempted from the stereotypical roles which are expected out of them rather they will exist in the society as human beings and not merely man and woman. Thus we can say that by adopting the deconstructionist approach we can help the human beings to live as respectable human beings and not narrow down their roles to just a man and a woman. The binary system has only two genders those are the masculine and the feminine. Even if we look into the grammar of languages we will find that it includes the male and the female and sometimes the neutral gender but they do not have any place for the transvestites/transsexuals, hermaphrodites, androgynous people. According to the binary system of gender it was said that those who did not fit into either the male or the female category they were not fit to become real members of the society. The binary system was thus very much biased towards the Trans and the inter sexes. The Trans and the inter sex are biological constructs and hence if they are excluded from the world view of gender and sex it is sheer injustice to them. The binary system not only excludes the other form of genders from its arena but also it tries to make women inferior to men. Thus we can say that the binary system of gender construct is not an ideal form and it suffers from a lot of limitation. On 1st of July 2004 the Gender Recognition Act received the Royal Assent. The purpose of the Gender Recognition Act was to provide the transsexual people with legal rights with regard to their acquired gender. The legal recognition of such an Act will include the issue of a certificate by the Gender Recognition Panel assuring full recognition of their gender. Before issuing such a certificate it is essential that the Panel is satisfied with certain criteria like that the person has or has had gender dysphasia. The Panel should also ensure that the individual has lived with such a gender for the last two years. At the same time they should also find out whether the person has the desire to live with such an acquired gender till the end of life. According to the full gender recognition certificate the person will be issued a new birth certificate which will state the acquired gender of the person and at the same time the person will be able to marry a person from the opposite sex. The previous law did not ensure all the rights to a transsexual. According to the previous law although the transsexuals could get all other official documents but they could not avail of a new birth certificate but with the application of the new law those individuals could get a new birth certificate and also they could enjoy the same benefits which the other males and the females enjoyed. For instance they were entitled to marry under the new law. (“Explanatory Notes to Gender Recognition Act”). Need of the Law: The history about the transgenders and the transvestites was very humiliating till the enactment of the gender recognition Act. The common belief among the people was that only when a transgender with the help of surgery changed the gender he or she could become a real man or a woman. Moreover when they got converted in the so called real man or a woman it was expected that they forget everything of their past. Such an attitude from the majority of the society made the transsexuals and the transgender feel isolated. The main reason as to why they were forced to a damaging social isolation was that they were forced to conceal their past history and this was humiliating to them. Not only that but also the transgender and transsexuals felt alienated at the attitude of the society. In fact being a transgender was equated to pathology. On 11th of July 2002 the European Courts of Human Right in the Goodwin v The United Kingdom case gave the opinion that UK government had gone against two rights namely the right to private life and the right to marry in the case of transsexuals under the purview of Article 8 and 12. The European Court of Human Rights also gave the judgment that the Government was obliged to protect the rights and freedom of the people and hence should take adequate steps to check the breaches. (“Explanatory Notes to Gender Recognition Act”). Aim of the Law: The Gender Recognition Act of UK aims at bringing about legal recognition to those who fall in the category of acquired gender. The practical implication of the Act will be in the sense that a male-to-female transsexual will be recognized as a woman by the English law. Being recognized as a member of the acquired gender the Act aims to give certain rights to the transsexual person in the sense that they would also get rights of marriage, inheritance, parenthood, benefits of pensions, they will also have the right to fall under the purview of gender specific crimes and at the same time they will also have the right of participating in various sport activities. The Act also gives the right of gender change in foreign countries to those belonging to the acquired gender. Thus it can be said that the main aim of the UK gender protection Act is to provide legal security to the transsexuals and the transgender individuals. It also attempts to empower them as citizens so that they do not feel discriminated because they are neither a male nor a female genetically. (“Explanatory Notes to Gender Recognition Act”). Social Transformation: The Act has had a lot of effect in the society of UK. It has brought about an alteration in the socio-legal attitudes of the society. The Gender Recognition Act was a remarkable step in ending the process of exclusion which the transgender and the transsexuals have faced for 33 long years in UK. The law brings into effect the Butlerian influence or it can be said that the law of Gender recognition is closely related with the theory developed by Butler. Judith Butler is of the opinion that one enacts ones gender. She says that performance of gender generally takes place because individuals act according to the expected norms and the repetition of such acts brings in the naturalization of that act within the individual and he or she enacts accordingly using his or her body. Butler holds the opinion that there is no gender identity behind the gender performances but they emerge due to the social construct and the expectation of the society. (Litosseliti, Sunderland, 26). Thus we can say that the Gender Recognition Act of UK uses the Butlerian influence in the sense that it allows the transsexuals and the transgender individuals to fit into a particular type of gender behavior based on gender dysphoria which means that if a person is unhappy with his present state he has the discretion to apply for the full gender certificate as because the Act takes into account dysphoria for assigning gender roles it can be said that it believes that gender is more in the mind than in the body. The Act also takes into account the fact that till the enactment of the Act the acquired gender people did not have the right to marry and the Act gives them the right to marry and hence is capable of ensuring them a right which was long desired by them. Personal Transformation: It is true that the transsexual people today have received a lot more acceptance than in the 1990s and one prime reason for the shift of attitude is the enactment of the Gender Recognition Act in the year 2004. That is we are in a position to say that the Act has given more equality and more social acceptance to the people who are transsexuals. At the same time we cannot deny the fact that the Gender Recognition has certain limitations associated with it. For example according to the Act the first criteria is gender dysphoria that is it has to be proved that the individual is in a state of permanent unhappiness and as a result wants to achieve a particular group membership based on gender. Thus we can say that the Act recognizes the state of transsexuals as that of pathology because it brings the examination by a medical practitioner of the transsexual individual. Moreover we can say that the Act has the provision of membership only as a man or a woman thus we can say that the Act focuses on the binary system of gender division. Rather it can be said that the Act is very rigid about being of a man or a woman. The fact that the Act perpetuates binary division can well be understood from the fact that a transgender individual has to be unmarried in order to receive the gender recognition certificate because the Act wants to ensure that the person after getting recognition of their acquired gender marry another individual of the opposite sex. Thus it is very particular about the state of being male or female. The State should be in a position to accept the gender identity of an individual without medical opinion thus in this regard we can say that the Gender Recognition Act of UK is an unethical legislation. This is because the use of medical opinion to identify gender in fact confuses gender with sex and also disregards the individual’s subjectivity towards a particular gender. The Act is called an unethical one because in order to change his official gender a person requires the permission or examination from the Gender Recognition Panel. Only if the panel approves that the person has gender dysphoria and has lived in the acquired gender for the last two years and also desires to live in the same acquired gender for the rest of his life then only does the panel approve of the application. Thus here it can be said that the State emphasizes on the gender stability than the self-identification of individuals in a particular gender. It is true that the ethical obligation of self-identification with regard to gender will make the personal identification documents less useful but at the same time the State should remember that gender is a social construct. (Shrage, 206). The queer theory rejects the essentialist concept of gender and believes that all forms of sex and gender are results of social regulation. The Queer Theory questions the predetermined concept of sex, gender and sexuality. Butler had said that people exist within gendered bodies and put on a particular sex with the help of behaviors, gestures, postures and through repeated styles that create the identity of the individuals. (Gilchrist, 147). Butler has suggested that instead of being specified and a fixed identity gender should be fluid in nature which can change at different contexts and different times. She has said that sex constructs gender and which in turn causes desire and thus the process continues. Butler holds the opinion that certain cultural constructs have become hegemonic in nature and as a result they seem too natural to us and we carry on such practices. (“Judith Butler”). From this we can understand that why time and again Butler tried to emphasize on the fact that gender is not natural it is created by the contemporary culture and the society. The queer theory suggested by Butler rejects the binary form of gender and hence in this regard it can be said that even the State should disregard the binary division of gender and instead should give weightage to the individual’s discretion towards a particular gender. The law should keep in mind that gender roles basically takes the form of a man or a woman and this takes place naturally through the society and an individual should have the freedom to choose his desired gender identity and it should not be dependent on the opinions of the medical experts. The Assimilation of Theory of Gender aims to erase the differences between the genders. It states that there should be no difference between a man and a woman in a society. The prime criteria of existence should be being a human. Assimilation enables an individual’s to escape from expected social roles and gives him the freedom to act according to his discretion. Rather it is best to bring in the construction of deconstruction of gender identities that is the concept of man and woman should not exist in the society with regard to social roles and behaviors. Any law regarding gender should keep in mind that apart from the two genders that is the male and the female there also exists a third gender. Law should give legal status to the third gender as a separate gender identity. Rather it is better said that the society should come out from the stereotypical gender constructs that is male and female. It is true that the Gender Recognition Act of UK has made the condition of the transsexuals much better but still it has to go a long way in order to receive a unanimous acceptance. Conclusion: The concept of gender and sex has always been confounding. Most of the time sex and gender are used interchangeably in the society. In reality that is not the case because sex is a biological construct and gender is essentially a social construct. The UK Gender Recognition Act has to a large extent changed the fate of many transsexual individuals but at the same time a lot needs to be done in this direction. The Act is limited in the sense it emphasizes on the binary division of gender. It forces applicants of full gender certification to identify themselves to a particular gender. Thus it can be said that it fails to recognize the existence of the queer gender or those who do not fit into a particular gender construct and hence it becomes very difficult for them to identify themselves as a part of the society. The Act is not perfect because it denies some individuals the right to be part of a particular gender. They have to depend on the opinion of the medical experts and at the same time it is seen that the Act assures that the individuals who receive their full gender certificates do not reveal the history of their past. This we can say that is a way of disregarding their biological constructs although with the help of the certificates people enjoy complete rights of the particular gender of which they are members but at the same time it makes them feel alienated. They feel that the State has done a favor on them and they have received something which they should not have received. Thus we can conclude saying that the Gender Recognition Act needs to bring about a lot of modifications in order to benefit a larger section of the society. REFERENCE 1. “2004 Chapter 7”. Explanatory Notes to Gender Recognition Act, retrieved on July 24, 2009, from: http://www.opsi.gov.uk/acts/acts2004/en/ukpgaen_20040007_en_1.htm 2. Holmes, Mary. What is Gender?: Sociological Aproaches. USA: Sage 2007. 3. Litosseliti, Lia and Sunderland, Jane. Gender identity and discourse analysis. Netherlands: John Benjamins Publishing Company, 2002. 4. Richardson, John, Caplan, Paula and Crawford, Mary. Gender differences in human cognition. USA: Oxford University Press US, 1997. 5. Roughgarden, Joan. Evolutions rainbow: diversity, gender, and sexuality in nature and people. California: University of California Press, 2005. 6. Shrage, Laurie. Youve Changed: Sex Reassignment and Personal Identity. USA: Oxford University Press US, 2009. 7. Butler, Judith. Gender trouble: feminism and the subversion of identity. London: Routledge, 1999. 8. Gilchrist, Roberta. Gender and archaeology: contesting the past. London: Taylor & Francis, 1999. 9. “Judith Butler”. retrieved on July 29, 2009, from: http://www.theory.org.uk/ctr-butl.htm 10. Butler, Brittany. “Christianity and Gender Roles”. Xculture Magazine. retrieved on July 29, 2009, from: http://www.xculturemag.com/butler.html Read More