Emergent Medicine and the Law by P. -L. Chau & Jonathan Herring

Author:P. -L. Chau & Jonathan Herring
Language: eng
Format: epub
ISBN: 9783030602086
Publisher: Springer International Publishing

4.10.1 Abolishing Sex as a Category

The best approach is to do away with all sex categories (Murray 2009). Although most people fall neatly into male or female categories, and there is congruence in their sex and gender identities, there are a small minority who do not. The law and society must take them into account.

Around the world most governments and legal systems claim to seek to promote equality between the sexes. Debates within the feminist movement have revealed that the promotion of equality does not necessarily require the law to ignore or diminish the differences between men and women (Fredman 2001). But rather the law should seek to ensure that inequality should not result from the differences. If maleness and femaleness were abolished as legal categories, this might be thought to inhibit such policies (Colker 1996). We suggest not. Moves to ensure that the care for children is afforded proper social, economic and political recognition; that pregnant workers are protected; that those doing the same jobs are granted equal pay can, of course, be taken without the need to refer explicitly to definitions of sex. Policies could be directed to prevent discrimination against groups of people engaging in activities traditionally understood to be performed by women (e.g., child care), without the need for a reference to sex.

The most likely opposition to a gender-neutral law would come from feminists of difference (Jaggar 1998). They argue that we should take into account sexual differences, but ensure that they do not produce inequality (Rhode 1989). We need a law to recognise there are differences that exist between men and women, but make certain that women or men are not disadvantaged as a result of them. These feminists make the powerful argument that a law and society which takes no account of sex will end up disadvantaging women. Promoting ‘gender-blind’ law will not promote equality because men and women are not starting on an equal footing. The danger with a straightforward liberal approach is that women can only achieve equality by succeeding under the male norm (Cornell 1991; Rhode 1998).

These arguments are well known and have been made extensively elsewhere and we will not repeat them here (Lacey 2004). We are convinced by them, but do not believe they require gender-specific laws. The way to tackle the disadvantages that women in general face is not through laws which distinguish between men and women on their face, but on laws which tackle the particular cause of inequality. For example, the inequality that is caused to women by the fact that women undertake the majority of child care can be tackled by laws which protect the interests of child carers, and can do so without reference to sex. Indeed, following the UK’s Gender Recognition Act 2004, a person can be the mother of one child and the father of another: that would be where a woman gave birth to a child; subsequently, the person was granted a gender recognition certificate and attended a licence clinic offering fertility services with a female partner, who gave birth as a result of such services.

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.