Candidate No 60744

INTRODUCTION

The task of assessing the contribution of work in the fields of Gender and

Sex/Sexuality to legal scholarship is not a task to be taken lightly or without due

regard to the individuals who live within the ‘other’- those who do not easily or

readily fit into the binary classifications on which society has been structured.

Therefore an analysis of the work in this field with regard to whether or not such work

has ‘made a difference’ is also quite a monumental task. With sufficient regard to the

task ahead it is necessary to outline what areas within this field of academic

scholarship are to be explored and furthermore to provide a preliminary determination

of the impact of such work. The three areas which will be the focus of this analysis

are as follows: (1) The Gender Recognition Act (GRA), (2) The homosexualization of

English Law1, and (3) The shift of the child custody system away from the parents

and to the ‘best interest of the child’. These three areas provide a framework to assess

the contribution of the work in Gender and Sex/Sexuality on legal scholarship.

I would provide the following statement as a foundation for this analysis:

Between Science and Society comes the Law2. The purpose of this statement is to

highlight the nature of Law within society and its ability to work outside the confines

of the absolute truths of the sciences and as well to shape the beliefs and interactions

of citizens within a society. The Law is therefore an instrument of social change

while at the same time a means to contain the prevalence of the ‘other’ within society,

that which threatens the binary constructs of existence. The most prevalent of these

1
See Moran, Leslie J., Homsexualization of English Law in Herman, D and Stychin, C eds., Legal
Inversions: Lesbians, Gay Men, and the Politics of Law, Temple University Press, Phildelphia, 1995.
2
Author’s Note: To the Author’s knowledge this statement has not been said by another individual and
is the construct of the author. However as is it often said that everything there is to say has been said,
if it is shown that this statement is contributed to another scholar it is not the intention of the author to
plagiarize or otherwise claim credit for work that is not their own. Furthermore a Google® search of
the phrase “between science and society comes the law” produced no results for the exact phrase as of
28/08/2007.

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constructs are the female/male and homo/heterosexual binary categorization of

individuals. When an individual fails to fit into such categories, they are classically

defined within the ‘other’. This social group of ‘other’ however seeks to gain societal

acceptance not to assimilate but to be provided an opportunity to feel a social

solidarity taken for granted by the majority of the population. From these binary

categories come the seeds of change and through continued resistance and discourse it

is the goal of scholars in gender and sex/sexuality studies to provide recognition for

individuals who previously did not have a voice.

The Gender Recognition Act 2004

Imagine that since the time of your earliest memory you did not feel

comfortable in your own skin. Something seemed to be wrong and it was more than a

few extra pounds or a haircut, it was something integral to your own identity. You

felt you were born with the wrong biological sex and to you this cruelty of nature

plagues your mind day in and day out. This divergence within you has for some led

to the process of physical reassignment of sex and for others life in the gender of their

choosing. However until the Gender Recognition Act3 (GRA) the Law in the United

Kingdom denied you the ability to be publicly recognized in your gender.

Case Law

The origins of the Gender Recognition Act surround cases involving the desire

of transsexual individuals to be married to their partners and recognized in their

acquired physical gender4. The case of Corbett v. Corbett5 was the precedent for

3
See Gender Recognition Act 2004 (c.7) available at
http://www.opsi.gov.uk/acts/acts2004/20040007.htm . Last accessed on 28/08/2007.
4
Attention needs to be paid to the language chosen to describe the cases prior to the GRA because in
those cases the individuals involved had gone through sexual reassignment surgery to obtain the
physical attributes associated with their desired gender.

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determination of sex (biological) in relation to the right to marry. The holding in that

case is as follows:

The judge, Mr Justice Ormrod, stated that there are three things to consider in
this respect – chromosomes, gonads and genitals. If they are congruent – that
is, if each lines up as being male at birth, the individuals is deemed to be
male, and remains male even after sex reassignment. See Cowan, S. “That
Woman is a Woman!” The Case of Bellinger v. Bellinger and the Mysterious
(Dis)appearance of Sex 12(1) Feminist Legal Studies 79-92 (2004) at pg 82.

There are obvious limitations with this holding and subsequent to repeated challenges

to change the determination of sex to marry the case of Bellinger v. Bellinger6 led to

the House of Lords declaring that the UK marriage law was incompatible with the

Human Rights Act 1998 and therefore it was the responsibility of the Parliament to

bring the UK law in line with the Human Rights Act. Acting on this legal precedent

the Labour government moved to create the Gender Recognition Act which is now in

force.

All’s Well That Ends Well…Not Quite

The Gender Recognition Act (GRA) is not without its failings when it comes

to addressing the myriad of issues facing an individual choosing to be recognized in

the non-birth gender. These issues range from pension benefits, sex discrimination

standards, criminal acts, to the all encompassing question of marriage. The GRA has

its failings in the binary dynamic that is created in society and repeated throughout the

House of Lords discussion of the GRB7. This binary approach is most dramatically

seen in the issue of marriage. Here the GRA poses a great problem to happy couples

that are already married but would be prohibited from a union under the current

marriage laws as that both parties would not be of the opposite sex8. This situation

5
[1970] 2 All E.R. 33. See Also Cowan, S. “That Woman is a Woman!” The Case of Bellinger v.
Bellinger and the Mysterious (Dis)appearance of Sex 12(1) Feminist Legal Studies pg 79-92 (2004).
6
[2002] Fam. 150 (C.A.); [2001] 1 F.L.R. 389 (H.C.).
7
Short form of Gender Recognition Bill – the precursor to the Gender Recognition Act.
8
For a more complete discussion of the failings of the GRA See Sandland, R. Feminism and the
Gender Recognition Act 2004 13(1) Feminist Legal Studies pg 43-66 (2005).

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would require the use of an interim Gender Recognition Certificate (GRC) which

would require the party moving for recognition to divorce their spouse and seek to

utilize a civil partnership arrangement. This however was not immediately possible at

the creation of the GRA but the Labour government did as well pass the Civil

Partnership Act9 which allows for the recognized union of same sex couples. This

however does not resolve that the intent of the Government is to clearly define the sex

and gender roles in society to coordinate with tradition and in turn to not stray from

the binary classification of marriage between a man and a woman. It has been made

clear that biological sex is no longer set in stone when it comes to advances in

reconstructive medicine (Science) however the desire of the larger public to recognize

the rights of individuals in the life tormenting struggle for identity (Society) has been

recognized within the public sphere if the individual will conform to the heterosexual

model of family life (Law).

The Homosexualization of English Law10

Sex acts and physical relations outside of marriage between members of the

same sex; these are the kind of interactions which were once part of the private

sphere of the bedroom. However during the 1950’s this barrier was broken and with

the increase in arrest of men for acts involving same sex partners, the Government

convened a committee to review the British criminal law. The Wolfenden Committee

was charged with the following task:

Its assignment was to consider the law and practice relating to the
homosexual offenses and the treatment of persons convicted of such offenses

9
See Civil Partnership Act (c.33) available at http://www.opsi.gov.uk/acts/acts2004/20040033.htm .
Last accessed on 29/08/2007.
10
Author’s Note: This title is not my own I take it from the Article which contributes greatly to this
section of the analysis on the creation of homosexual offences under British Law. See Moran, Leslie
J., Homsexualization of English Law in Herman, D and Stychin, C eds., Legal Inversions: Lesbians,
Gay Men, and the Politics of Law, Temple University Press, Phildelphia, 1995.

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by the courts, and the law and practice relating to offenses against the
criminal law in connection with prostitution and solicitation for immoral
purposes. Moran, Leslie J., Homsexualization of English Law in Herman, D
and Stychin, C eds., Legal Inversions: Lesbians, Gay Men, and the Politics of
Law, Temple University Press, Phildelphia, 1995. pg 3-4.

The task however was complicated by the realization that neither the Government that

charged the panel with its duty nor the British criminal law provided a definition of a

‘homosexual offense’. This created problems relating to the prevalent societal

definitions of sexual acts as well as the reality that current criminal offenses did not

identify the sex of the parties involved beyond describing the physical acts in which

they engaged. The Wolfenden Committee commented on this reality when in a draft

report it stated:

…at every stage we have been driven to face the question of terminology.
From the literature of the subject, from the memoranda submitted to us, from
our conversations with witnesses, and from our own discussions, it has
become clear that an accepted terminology is an essential precondition to any
useful discussion of this tangled and complicated matter. Moran, L.J. at pg 4.

However the resolution put forth by the Wolfenden Committee embraced some very

interesting notions of sexuality and also the sex of the individuals that engaged in the

behavior that was to be regulated. One member of the panel a Dr. Curran commented

on the general nature of the offenses that would be classified as ‘homosexual

offenses’. Dr Curran commented:

…at least a majority of offences would I think fall into the general statement
“a meeting between two or more male persons during which the genital
organs of one party are deliberately brought into contact with or pressure
against any part of the body of another or willfully exhibited or inspected
with intent (admitted or reasonably presumed) to obtain sexual excitement.”
Moran, L.J. pg 11. (emphasis added)

The result of this proposal is to classify the offenses which are committed by

homosexuals as limited to the male gender and does not consider actions or behaviors

between women and opposite sex partners, including such acts as buggery. The final

classification scheme therefore identifies ‘homosexual’ as predominately if not

exclusively a domain of men. The question then to be posed is if this conclusion is

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merely a product of the times in which it was drafted or a larger comment on what is

deemed immoral or offensive in the sexual practices of individuals11. It would seem

once again that between Science and Society comes the Law. In this instance the Law

has been utilized to address a social problem of men entertaining sexual acts with

other men while ignoring the reality (Science) that both men and women as well as

heterosexual partners can engage in so called ‘homosexual offenses’ and at the same

time commenting on the disapproval and immorality associated with male/male

sexual activity (Society).

The ‘Best Interests of the Child’

The final area of assessment of the work in gender and sex/sexuality is in

relation to child custody and also the prevalence in recent years of a move away from

the interests or individuality of the parents to the sole focus being the ‘best interests of

the child’. The current trend in Family Law is a shift away from adults to children

and this extends beyond the realm of mere custody disputes to matters pertaining to

the welfare and education of the child12. While it can be argued that a child-centered

focus to the resolution of familial disputes is beneficial it also seems to provide a

valid basis on which to challenge the motivation behind the law concerning the

approved family structure. Furthermore, the child centered approach utilizes both the

voice of the child interlaced with the voice of society through the legal system to

further maintain that a stable family is one with both a mother and a father. This issue

effects not only the children involved in these family disputes but also the range of

11
Author’s Note: There is considerable discussion of the means and procedures to detect ‘homosexual
offenses’ and significant discussion of the divergence between the Scottish and British criminal law in
relation to sex acts in the complete article by Moran, L.J. The Homosexualization of English Law.
12
See Lowe, N and Douglas, G. Bromley’s Family Law: 10th Edition, Oxford University Press. New
York, 2007.

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parents effected from lesbian mothers13, single mothers, same-sex couples, and gay

fathers.

The British Family

A main concern of the Government is the promotion of stable living

environments for children and most typically this has been promoted through the

belief that a stable family is one in which there is a mother and a father. This

heterosexual preference has been recently expounded in the press concerning the rise

in youth violence in Britain and the Conservative party under David Cameron have

suggested using tax benefits to promote marriage and civil partnership to bring

stability and structure back to the British family. David Cameron in his speech stated:

Of course it can be better for children to be brought up by one happy parent,

or a happy parent and a happy step-parent, than two unhappy parents. That
said we must always remember that bringing up children is a social duty as
well as a personal pleasure....;that a child's long-term interests do not always
coincide with a parent's short-term desires ...and that a child's best interests
should always come first. In general it's clear that marriage works, so it
shouldn't be too much to expect governments to support and sustain the
14
married family . (emphasis added)

While the current Government remains a Labour government the language used by

David Cameron is very similar to the beliefs held during the time of Margret Thatcher

whereby the family was a cornerstone of society15. During the term of Margret

Thatcher the debate arose in the media about “virgin mothers” women who desired to

become pregnant without penetrative sex with men and in turn the suitability and

stability of such parenting arrangements was called into question by the Conservative

13
See Harne, L and Rights of Women. Valued Families: The Lesbian Mothers’ Legal Handbook, The
Women’s Press, London, 1997. This book is an insightful and engaging work which is specific to
lesbian mothers seeking to deal within the child custody system within the United Kingdom.
14
See Cameron, D. The Conservative leaders address to the National Parenting and Family Institute on
20th June 2006 as reported in the Gaurdian available at
http://politics.guardian.co.uk/homeaffairs/story/0,,1801949,00.html accessed on 28/08/2007.
15
See Cooper, D. and Herman, D. Getting “the family right”: Legislating Hetersexuality in Britain,
1986-91 in Herman, D and Stychin, C eds., Legal Inversions: Lesbians, Gay Men, and the Politics of
Law, Temple University Press, Phildelphia, 1995

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Party. In a discussion surrounding the access and payment of IVF16 services to

women outside a Man/Woman relationship discussion arose concerning the family.

Baroness Strange commented in the House of Lords on the family in 1989 by stating:

The family is the basis of all civilization. It is also the basis of life itself. All
life – people and animals as well – was created by God. It is also the result of
a union between a mother and a father. So the child comes into the world as
part of a trinity. It emerges as part of a family17. (emphasis added)

The Baroness’s words clearly indicate that it was the belief at the time at least

amongst the conservative party that children should be brought into structured

heterosexual families. Finally the distaste for alternative family structures and

lifestyles was made evident in the comments of Lady Saltoun of Abernethy

concerning her amendment to the bill concerning access to IVF treatment.

The interests of those who cannot have children in the normal way and want
them, and the interests of the children they may have are not necessarily
compatible. Under these circumstances, surely the best interests of the
children must be the paramount consideration … Children learn primarily
from example, by copying what they see. It is by example that a boy learns
how to be a responsible husband and father and how to treat his own children
in turn. It is by example that a girl learns how to be a wife, from seeing how
her mother cares for her father …It is for similar reasons that the Committee
may consider that lesbian couples should not be eligible to receive AID or in
vitro fertilization services 18.

Clearly there is conflict surrounding the construction of the family in Britain which

has persisted for many decades and many centuries in the British Family Law,

however what appears to be pivotal is that this current shift away from the adults and

to the children is a means to remove the possible conflicts with the Human Rights Act

of 1998. If the child is the “paramount concern” then discrimination placed upon the

parent/adult concerning their sexual preference or behavior becomes a fleeting object

of debate because the Law and the court system can easily hold that the lifestyle of the

parent/adult is not in the child’s best interest. This is truly an example where Between

16
IVF is short hand for in vitro fertilization, a process in which sperm and egg are united outside the
womb and then implanted to assist in pregnancy.
17
Cooper,D. and Herman,D. Getting “the family right” at pgs 165-166.
18
Cooper,D. and Herman,D. Getting “the family right” at pgs 166-167

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Science and Society comes the Law. Here the availability of IVF treatment has

allowed women to conceive and bear children without the assistance of a father

(Science) and the attitude towards same sex couples and lesbian mothers may be less

adverse to such a possibility (Society) but the debate is closed off by the ‘best

interests of the child’ (Law).

CONCLUSION

The task proposed when undertaking this assessment was to look at the

contributions of work in the field of gender and sex/sexuality in light of legal

scholarship or contemporary legal issues. Just as topics in gender and sex/sexuality

overlap into many fields and contain such areas as feminist studies, economics and the

law the line between legal scholarship and contemporary legal problems is also a bit

transparent. The question remains: has this work ‘made a difference’? The answer is

yes and no. The work is able to bring to the forefront topics that some might find

confrontational and otherwise uncomfortable as that they do not fit the hetero-

normative dynamic encouraged by the Government and main-stream society.

However, working against the prominent and overwhelming societal binary constructs

is a daunting task and many of the voices in legal scholarship are pushed to the

periphery so long as the common person believes that the significance of these issues

on their day to day life is insignificant. So clearly the result of the analysis and the

work in gender and sex/sexuality is to challenge perceived binary dynamics of

modern society while at the same time providing a voice to the under-represented.

This task is not an easy one and it faces many challenges because with every advance

there is still a lack of equal recognition under the law for all types of unions, the

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purported criminality of sexual acts, and the interests of the adults when their lifestyle

is challenged as not being in the best interests of the child.

The statement ‘Between Science and Society comes the Law’ could not be

more relevant than in relation to the debates surrounding self-identity and the public

sphere. The debate about the separate spheres of the public and private and the ability

of the Law and the Government to regulate private behavior is a balance that will be

re-structured for time immemorial. However it is only through academic and then

common discourse that these issues can be brought to light and society can find itself

adapting and shaping to provide for the happiness of all citizens and not just the

majority.

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Works Cited & Consulted

1. Bibbings, L. Heterosexuality as Harm: Fitting In in Gordon, D. Hillyard, P. et

al eds. Beyond Criminology: Taking Harm Seriously, Pluto Press, 2004.

2. Cameron, D. The Conservative Leaders address to the National Parenting and

Family Institute on 20th June 2006 as reported in the Guardian available at
http://politics/gaurdian.co.uk/homeaffairs/story/0,,1801949,00.html accessed
on 28/08/2007.

3. Connell, R.W. Masculinities 2nd Edition, Polity Press, Cambridge, 2005.

4. Cooper, D. and Herman, D. Getting “The Family Right”: Legislating

Heterosexuality in Britain, 1986-91 in Herman, D. and Stychin, C. Legal
Inversions: Lesbians, Gay Men, and the Politics of Law, Temple University
Press, Philadelphia, 1995.

5. Cowan, S. “That Woman is a Woman!” The Case of Bellinger v. Bellinger and

the Mysterious (Dis)appearance of Sex in 12(1) Feminist Legal Studies pgs
79-92, 2004.

6. Harne, L and Rights of Women, Valued Families: The Lesbian Mothers’

Legal Handbook, The Women’s Press, London, 1997.

7. Lowe, N and Douglas, G eds., Bromley’s Family Law: Tenth Edition, Oxford
University Press, New York, 2007.

8. McIntosh, M., Queer Theory and the War of the Sexes in Kemp, S. and
Squires, J., Feminisms, Oxford University Press, New York, 1997.

9. Moran, L.J., The Homosexualization of English Law in Herman, D. and

Stychin, C. Legal Inversions: Lesbians, Gay Men, and the Politics of Law,
Temple University Press, Philadelphia, 1995.

10. Nicolson, D. and Bibbings, L., Feminist Perspectives on Criminal Law,

Cavendish Publishing Limited, London, 2000.

11. Petersen, C., Envisioning a Lesbian Equality Jurisprudence in Herman, D. and

Stychin, C. Legal Inversions: Lesbians, Gay Men, and the Politics of Law,
Temple University Press, Philadelphia, 1995.

12. Rich, A., Compulsory Heterosexuality and Lesbian Existence in Kemp, S. and
Squires, J., Feminisms, Oxford University Press, New York, 1997.

13. Sandland, R., Feminism and the Gender Recognition Act 2004 in 13(1)
Feminist Legal Studies, pgs 43-66, 2005.

14. Smyth, C., Queer Notions in Kemp, S. and Squires, J., Feminisms, Oxford
University Press, New York, 1997.

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15. Sturgis, S., Bisexual Feminism: Challenging the Splits in Kemp, S. and
Squires, J., Feminisms, Oxford University Press, New York, 1997.

16. Wilson, E., Is Transgression Transgressive? in Kemp, S. and Squires, J.,

Feminisms, Oxford University Press, New York, 1997.

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