Elizabeth Peel and Hannah JH Newman*

Abstract

The Future of Legal Gender (FLaG) project is interested in examining the implications, for a wide range of stakeholders, of changing how legal sex/gender is regulated in England and Wales. In this article, we explore the views of ‘the wider public’ as manifest in responses to our ‘Attitudes to Gender’ survey (n=3,101), which ran in October to December 2018. Generally, respondents were invested in the status quo regarding a binary two-sex registration of gender close to birth. We discuss this finding with reference to cisgenderism and endosexism, focusing particularly on being critical of ‘gender’ and foregrounding biological sex, and views for and against self-identifying gender. In tandem, we also provide a critical commentary on the methodological positives and pitfalls associated with online survey research on a ‘topical’ issue. We suggest that cisgenderism could provide a less individualised framework for understanding different people’s hopes and worries with regard to both the current legal gender framework, and the possibility of reform.     

Introduction

We are living in a cultural moment when, on the one hand, fault lines around gender are being contested, and on the other the very ground of what constitutes a progressive or regressive stance on gendered identities is shaking (Ellis, Riggs and Peel, 2020). Gender related rites of passage, such as the North American ‘gender-reveal cake’ party that typically happens when the foetus is in utero, according to some are ‘losing popularity because they fetishize babies’ genitals and underscore outdated social constructs of gender roles’ (Severson, 2019). There is both a revival in second wave feminist practices of ‘raising children without gender stereotypes’ (Mackay, 2018), and a ‘theybe boom’ of gender neutral, open or creative parenting which aims to decouple gender from sexed bodies or erase gender entirely.

People’s attitudes towards gender holistically, and legal gender in particular, have not been well researched and as such parallels need to be drawn to allied areas. Attitudes towards transgender, gender diverse, and/or gender nonconforming people are arguably underpinned by broader attitudes and understandings of what sex and gender are and how either, or both, are determined. Understandings and experiences of gender and/or sex have been shown to develop from a young age. Research in schools in Australia (Callahan and Nicholas, 2019), for example, has demonstrated the everyday and implicit means through which hierarchical gender binaries continue to be perpetuated. This research suggests that gender binarism continues to be (re)constructed and reinforced through subtle invocations of gender, continuing to encourage children into binary gendered practices in their most formative years (Wingrave, 2018). Similarly, Halim (2016) presented evidence that early childhood is a normative time for gender rigidity across many domains, including appearance, play, peer preferences, and intergroup gender attitudes. Halim theorised that these cognitions motivate children to engage in self-socialisation as they strive to adhere to gender norms.

Although the literature in this area is not as well developed as attitudinal research focusing on views about lesbians, gay men and bisexual (LGB) people, there are some studies examining attitudes towards (mostly) transgender people/rights (e.g., Antoszewski et al., 2007; Flores, 2015; Harrison and Michelson, 2019; Norton and Herek, 2013). Some research suggests that personal contact with LGB people can positively correlate with support for trans people’s rights (Tee and Hegarty, 2006) – namely an interpersonal contact ‘secondary transfer effect’ (Norton and Herek, 2013). Flores’ (2015) study examining public attitudes towards transgender rights in the USA found that respondents who reported being more informed about transgender people tended to have more supportive attitudes. This study also suggested that interpersonal contact with someone who is lesbian or gay also leads to a secondary transfer of positive attitudes towards trans people.(1) The question though, is how might this mechanism of attitude generalisation work in the context of the current polarised debates in the UK, in which there is an established presence of gender critical(2) feminists, whose views largely contradict those of trans advocates, within LGBT+ communities. Thus, if a heterosexual person who holds gender critical views has interpersonal contact with an individual who is lesbian or gay, then it would be reasonable to suggest that the secondary transfer of positive attitudes towards transgender people would be unlikely to occur, perhaps due to a lack of the extended contact hypothesis (i.e., friendships across groups, Zhou et al., 2019) or an active unwillingness to engage positively with trans people. As is the case with attitudes towards lesbians and gay men, cisgender(3) men are less supportive of transgender rights than cisgender women (Antoszewski et al., 2007; Harrison and Michelson, 2019). But again, this picture might be complicated by gender critical feminists largely being cisgender women.

The position of gender critical feminists is that the use of the term ‘gender’ rather than ‘sex’ is problematic because ‘it obscures the existence of persons, women, who are biologically female, and their particular interests’ (Jeffreys, 2014: 43). They are critical of gender identity – a person’s internal and individual experience of gender, which may or may not normatively connect with the sex assigned at birth – largely because they view it as dismissing biological sex, which they see as the basis on which women are subordinated.(4) Jeffreys (2014: 43) argues that degendering ‘disappears biology and relegates it to history’. Cooper (2019) refers to this position as the ‘gender as sex-based domination’ view; whereas, the contrasting perception of gender she labels the ‘gender as identity diversity’ perspective. This too is a useful lens for interpreting the views expressed within the FLaG survey data. As we will see in the following section the ‘gender critical/gender as sex-based domination’ perspective was well represented in our survey data.

The central problematic explored within the FLaG project is one of the decertification of legal gender but not in polarised terms. As Davina Cooper and Robyn Emerton write: ‘FLaG focuses on a version of decertification between…two poles’ (see further Cooper and Emerton, this issue). The aspect of the project that we explore in this article shares that same ethos and approach. We recognise that there is a plurality of feminist perspectives both within and across different feminist standpoints and concepts (e.g., lesbian feminism, Ellis and Peel, 2011; intersectional feminism, Carastathis, 2014). We also recognised that there is potential for different forms of feminism to be simplified and/or recast in different ways for ends which may not be feminist (e.g., Knott-Fayle, Peel and Witcomb, in press), and that representing ‘the Other’ has been a subject of much feminist debate itself (e.g., Wilkinson and Kitzinger, 1996). Within our own field, feminist social psychology, there was much discussion in the 1990s foregrounding the diversity in feminist perspectives and the caricaturing of some. Diane Richardson’s (1996: 195) point about radical feminism being ‘continuously held up as the “bad fairy” of feminism upon whose supposedly narrow shoulders all the ills and failures of feminism can be heaped’ holds contemporary resonance. Although with respect to the proximate context of the feminist, and other, perspectives our FLaG survey ‘captured’, the “bad fairy” is perhaps the fact that the full range of perspectives weren’t made visible,(5) and therefore our empirical discussion invariably coheres around a limited number of poles.

As we go on to explore in more depth below, we suggest that cisgenderism is a useful conceptual framework to interpret our empirical findings. Cisgenderism is the ideology which undermines individuals’ own understandings of their genders and bodies; it is ‘the assumption that assigned sex determines gender [and] [t]he assumption that there are only two genders’ (Ellis, Riggs and Peel, 2020: 290). Cisgenderism can be manifest in various ways, including:

a lack of official recognition of sex/gender diversity in social, medical, and legislative contexts (e.g., ‘male’ and ‘female’ as the only option on forms); pathologisation of sex/gender diversity (e.g., treating intersex variations as biological anomalies; treating trans as a gender disorder); and misgendering (i.e., using gender pronouns that do not reflect how people understand their gender). (Ellis, Riggs and Peel, 2020: 199, our emphasis).

When we consider debates about how gender should or could be regulated these are often either rather polarised (e.g., trans advocates versus gender critical feminists) or cohere around particular settings or contexts (e.g., access to toilets, or elite sports regulation) (Norman, Sharpe, Freedman et al., 2018). The ‘Attitudes to Gender’ survey aimed to capture both people’s everyday understandings of sex and gender and their thoughts on legal gender and the potential for reform (Cooper and Renz, 2016; Cooper and Emerton, this issue). Thus our aim was two-fold: 1) To explore reforming legal gender status, focusing on England and Wales, drawing on the views of the wider public; and 2) To understand different people’s hopes and worries in relation to both the current legal framework and different approaches to legal reform.

Online survey method and process

In our ‘Attitudes to Gender’ survey we asked questions about gender in everyday life as well as legal gender. (The survey is reproduced in full in the Appendix to the Word and PDF versions of this article.) We chose to develop the survey questionnaire ourselves rather than use pre-existing measures (e.g., the Social Roles Questionnaire, Baber and Tucker, 2006) so we could ensure the survey mapped well onto the overall aims and objectives of the project. The survey ran from October to December 2018 in partial overlap with the UK Government’s public consultation on potential reform of the Gender Recognition Act 2004 (GRA) in England and Wales.(6) We received 3101 usable survey responses. In terms of legal gender, overall this sample of respondents (which was opportunistic so cannot be claimed to be representative of opinion in England and Wales) did not show appetite for changing the current two sexes registered close to birth approach (cf. Cooper and Emerton, this issue).

Just under 56% (n=1,729) ‘strongly disagreed’ or ‘disagreed’ with the statement that ‘The British system for assigning male/female at birth should be reformed’, primarily on the basis that the current system works for the majority. Some respondents objected to the wording of the statement itself – an issue we return to below – providing comments such as ‘The term “assigned at birth” is simply wrong. Sex is observed and noted as a fundemental [sic] immutable biological characteristic, like the Sun rises in the East and sets in the West!’. In contrast, the Scottish Government’s earlier consultation on reform of the GRA found a greater appetite for reform with 60% agreeing with the proposal to introduce self-declaration for legal gender recognition (Scottish Government, 2018).

Before we go on to explore the diverse interpretations of the statements within the ‘Attitudes to Gender’survey, it is worth saying more about the particular moment in which these data were collected. As we said, the GRA consultation was happening, and therefore the regulation of the legal status of trans and gender diverse people was high in public consciousness. And more broadly, many claim now(7) is a ‘critical period around gender’ as, especially with regard to sex and/or gender as binaries, ‘the language is contested’ (Davidson, 2019: 47). Given the length and complexity of our survey, this heightened public consciousness was beneficial in that we gained far more responses than we had anticipated, and with a high degree of detailed engagement with the free text questions.

There was also the option to comment on opinion statements (e.g., ‘People who are not born male are disadvantaged’; ‘Identification as male/female should be removed from birth certificates’). So respondents were able to expand on their rating scale view if they wished, and some commented on this opportunity directly – ‘great use of free text spaces to explain answers’. We have found this a fruitful approach in previous research (e.g., Harding and Peel, 2007) as it allows respondents to explain their attitudinal choice (i.e., from strongly disagree to strongly agree) which encourages survey engagement at the time, and later helps with interpreting quantitative data.

Social media platforms, especially Twitter, played a significant role in the dissemination and spread of awareness of the survey. We promoted the link to the online survey via the project’s Twitter handle (@futuregender) and our personal Twitter accounts. Emails were also sent out promoting the survey to numerous different off-line groups with an interest in gender, law or equality. Early in the survey recruitment period a thread on our survey appeared on Mumsnet, an online platform which appears to favour ‘gender critical’ perspectives (Forstater, 2019). The initial post on Mumsnet under the ‘feminism chat’ heading was entitled ‘Attitudes to Gender - a survey being used to write a new gender bill in the UK’ (21 December 2018, our emphasis) and attracted 90 posts. The way in which the survey was framed in this online space, plus the comments written by those who reported completing the survey via this platform, would suggest that engagement from women with a gender critical perspective was greater than might have been generated from our broader-based survey recruitment plan.

Virtual platforms such as Mumsnet were mobilised a number of times during the recruitment window for the survey. Cooper (2019) has referred to current gender debates as ‘a very binary drama’ and there was evidence of polarised binarisms within the survey respondents themselves with references made to ‘mumsnet brigade’ and ‘transphobic bigots’ on the one side, and ‘transgender activists’ on the other. One respondent reflected on the engagement from certain stakeholders as a ‘transphobic deluge from Mumsnet and a “woman’s” place who have a coordinated campaign to skew this study’ (Trans Female, 49, lesbian).

In terms of the overall profile of the respondents, most were resident in England and Wales (75%), and most were legally female (73%). We tried to increase the number of male respondents, through promoting the survey to men’s groups and by saying we particularly wanted male respondents on social media platforms but these targeted recruitment efforts were largely unsuccessful. Similarly, attempts to increase responses from other under-represented groups did not make a marked difference to the make-up of the final sample. 15% did not identify with the sex/gender they were given at birth, most identified as feminist (67%, n=2066) and nearly half the sample reported holding left wing political views. The median age of respondents was 40 (ranging from 18-82 years). Further detail about the demographic characteristics of the sample can be found on the project website at: https://futureoflegalgender.kcl.ac.uk/findings/

How opinions were conveyed in the survey was quite often confrontational and challenging. Respondents contested many of the opinion statements and also contested the aims of the research and, by extension, our competencies and capabilities as researchers, for example: ‘the people behind it have such strong biases that I doubt anything good or useful will come from it’ (Cisgender Male, 67, heterosexual). We experienced complaints made to our Universities about the research, which again demonstrates the depth of feeling at the time about the issues this project touches on. People have ideological investments and political stakes in both the production and consumption of research. In our view it is not achievable or desirable to aim to strip investments and stakes from research practices, and it would be disingenuous to claim that, in this case, a survey could discover an objective truth. Indeed, as previously mentioned, the language around this topic is currently heavily contested, and so using language in the survey that would be agreeable to all stakeholders could be deemed the impossible task. Comments about why people rated the opinion statements as they did are fascinating. Here is one example to illustrate the point. As a feminist project it would have been remiss of us not to ask about attitudes around gender-based structural inequality, so one statement read: ‘People who are not born male are disadvantaged. (Please explain your choice if you wish)’. Below are three responses (in no particular order) that are illustrative of the diversity of views:

1) ‘Don’t Know’,with the explanation ‘What does “born male” mean. I think you mean “assigned male at birth” ...or do you? Absurd question’ (Cisgender Female, 43, lesbian, intersex);
2) ‘Strongly Agree’, with the explanation ‘It is extremely offensive to call people “not Male” the word you are looking for Is [sic] female. It is erasing the sex class of female to call this group “not Male” It would be offensive and unacceptable to call black and minority ethnics groups ‘not White’. In the same way this is offensive (Cisgender Female, 35, heterosexual);
3) ‘Neither Agree or Disagree’, with the explanation ‘The premise of this question is transphobic and cisgenderist’ (Cisgender Female, 48, lesbian).

For online survey research, is it problematic when the status or legitimacy of the quantitative response is undermined by an explanation that challenges the premise of the question; for example, criticising a statement because of an objection to the use of the word gender (rather than sex) rather than simply responding to it on its own terms? Or research participant objection to the wording of statements or questions in surveys could in fact be commonplace, and not specific to this topic. A ‘typical survey’ would not usually give respondents opportunity to comment on the wording of a statement they are being asked to rate on a scale from strongly agree to strongly disagree. For instance, in engaging with a statement such as ‘Single use plastics cause climate change’, a respondent may wish to qualify their response by questioning the singular causation, and suggest instead that the phrase to be used is ‘contribute to’ rather than ‘cause’, but there would not be a mechanism within the survey to do this. In other words, objection to the construction of survey questions may be common but not expressible. Perhaps the person could raise this if there was the opportunity at the end of a survey for any general comments, but likely the respondent may be less motivated to raise a specific point later on.

As well as comments on individual statements, over half (n=1516) of the respondents provided feedback on the survey as a whole. Interestingly, those who completed the survey often offered a view on what stake or agenda of ours could be inferred from the questions.(8) Again these comments were diverse, and sometimes accusatory. For instance, the five excerpts below are good examples of us being positioned as having an ideological investment in a side of the current debate – as both ‘anti trans’ and ‘pro trans’:

1) ‘I find the questions misogynistic, homophobic, interphobic and most worryingly encouraging of child abuse...You have NO respect for the 99% of the population who do NOT follow trans ideology’ (Cisgender Female, 25, heterosexual);
2) ‘it quite clearly is one more effort to push the gender agenda, so transparent (no pun intended) and clearly needs to stop as it is oppressive to women and girls’ (Cisgender Female, 27, heterosexual);
3) ‘Very leading questions, leading towards a ‘gender-critical feminist’ or TERF(9) viewpoint’ (Nonbinary Female, 29, bisexual, queer);
4) ‘The survey is biased and leading in how it is written and is being filled out by transphobes in their droves so it will no doubt achieve the biased anti trans results it is aiming for’(Nonbinary, 47, asexual/bisexual); 
5) ‘There is cisgenderist language throughout. I have marked some’ (Cisgender Male, 37, gay).

Our research team has some diversity – in terms of genders, sexualities and feminist politics –  and the project is not seeking to support a ‘side’ in this ‘very binary drama’. The rhetorical aspects of these comments are interesting, especially the use of scientific terms to discredit the assumed goal of objectivity in the survey: note the references in comments 3 and 4 to ‘leading questions’ and being ‘biased’ (see also Kitzinger, 1990; Clarke, 2000). That our survey was ‘marked’ (comment 5) also functions to construct a lack of credibility, and being labelled as prejudiced and ‘encouraging of child abuse’ (comment 1) is again aimed at discrediting the research. Having said this, there were more positive comments made about the survey – such as ‘extremely interesting/challenging and well-structured’, ‘very thought provoking which is good’, and ‘it’s given me a lot to think about. Thank you’.

We can see, then, that there are both positives and pitfalls in the online survey method that we initially deployed to understand lay perspectives on legal gender. (We also later recruited participants to provide audio-visual and written reflections on gender, and have conducted semi-structured interviews with members of the public too.) Before engaging in more depth with our survey data regarding perceptions of sex/gender and ‘hopes and worries’ in relation to potential law reform, we next discuss cisgenderism as a conceptual framework to enable us to interpret these data. We discuss the gender critical perspective, and pro- and anti-gender self-identification views in these data. We suggest that cisgenderism and endosexism (a non-intersex perspective) help explain the emphasis on adhering to the status quo, namely retaining two – and only two – legal genders and other binary modes of regulating and recognising genders.

Findings: favouring the status quo and cisgenderism

Cisgenderism is a comparatively new concept, connected to the earlier term ‘bigenderism’ (Gilbert, 2009: 93) though more expansive than ‘only two genders ... correspond[ing] with the two sexes, male and female’. A cisgenderism framework was first developed and applied by Y. Gavi Ansara and Peter Hegarty (2012) in their empirical examination of the construction of the psychology literature focusing on children. Given cisgenderism is ‘the ideology that invalidates people’s own understandings of their gender and bodies’ (Ansara, 2015: 14; Ansara and Hegarty, 2014) a legislative framework which inscribes and retains a binary model of sex/gender in the face of a plethora of individual understandings of sex/gender is de facto cisgenderist. Ansara (2015: 15) discussed five forms of experiences of cisgenderism which do not connect directly to legislative frameworks, but nevertheless contextualise the wide-ranging impacts of gender-related delegitimisation:

1. Pathologising – characterising a person’s gender(s) or non-gender as disordered or problematic;
2. Misgendering – characterising a person’s gender(s) or non-gender in a way that is inconsistent with their own understanding of their gender;
3. Marginalising – Excluding or imposing saliency on dimensions of a person’s gender(s) or non-gender such as their history, experience, identity, expression and/or characteristics. Treating their gender(s) or non-gender as strange or ‘fringe’;
4. Coercive queering – Imposing an ‘LGBTI’ or ‘queer’ label onto women and men of trans experience who live as and identify as heterosexual, assuming that people of trans experience have identical needs and experiences to people in same-gender relationships;(10)
5. Objectifying biological language – Using language that describes another person in terms of their assumed physical characteristics, where another person would typically be described by their gender.

Whilst Ansara’s five forms emphasise experiences, in the context of the FLaG project, we see the more structural aspects of cisgenderism as particularly useful because these allow for a less individualised and/or group focused approach. Cisgenderism also offers scope for drawing parallels to, and creating greater parity with, other analogous frameworks of privilege and marginalisation (e.g., heterosexism, sexism, racism, endosexism). (See further Hunter, this issue, on connections between cisgenderism and racism.)

Endosexism, or an endosexist perspective, is a non-intersex view. It is a less widely known term which aligns with intersex activism and critical perspectives on intersexuality (Holmes, 2016). Endosexism is pertinent to our analysis for two main reasons. First, similarly to cisgenderism, endosexism foregrounds the ‘majority’, taken-for-granted, non-intersex perspective as potentially problematic rather than focusing on the ‘minority’ experience and individual prejudice (which would be labelled as anti-intersex or interphobic; with respect to cisgenderism, the terminology would be anti-trans or transphobic). Second, we found in our empirical data that positions which minoritised (in a dismissive way) trans and non-binary people’s experiences commonly occurred alongside positions that similarly minoritised (or outright expunged) people with intersex variations as a distinct group (cf. Pikramenou, 2019).

In what remains of this article we discuss two themes in our data on attitudes toward legal gender with reference to a cisgenderism framework: namely, the ‘gender critical’ perspective; and related to this, views for and against self-identifying gender. As we mentioned above, in terms of overall appetite for legal change, the FLaG survey responses indicated a lack of support for changing the system that currently exists – 39.5% (n=1,225) of respondents strongly disagreed that the British system for assigning male/female at birth should be reformed, and a further 16.3% (n=504) disagreed, because it ‘works for most people’. Almost two thirds of respondents (63%) also strongly disagreed or disagreed with the proposal to remove identification as female/male from birth certificates - 44.9% (n=1,393) strongly disagreed, and a further 18.1% (n =562) disagreed. This attitude places higher importance on those the binary system works for, i.e., cisgender people, than for those for whom it does not, because they are a minority, and thus is evidence of cisgenderism. Yet as Shona Hunter notes in her commentary (Hunter, this issue) cisgenderism recognises ‘that gender binaries are universally oppressive’ (p. 5) and ‘cisgenderism holds important possibilities for coalition working for collective emancipation’ (p. 1).

Being critical of ‘gender’ and foregrounding biological sex

A strong feature of the gender critical perspective is the resistance to self-identification of gender, a viewpoint that is substantially represented in the FLaG survey data as discussed further below. The pattern of responses across different identities and statuses is interesting in that the majority of respondents favoured self-definition for religion (79.7%, n=2,473) and sexual orientation/identity (74.1%, n=2,298) but under a quarter favoured self-definition for ethnicity (23.8%, n=73), disability (21.3%, n=661), or age (4.8%, n=149). Over a third (39.3%, n=1,218) of survey respondents agreed that the government should recognise whatever identity or status a person claims is theirs when it comes to gender. The majority, therefore, did not report thinking that gender was a matter of self-determination, unlike religious belief or sexual identity.

The belief in the foundational and fixed nature of sex was conveyed in comments such as: ‘A person when born has certain facts: What their sex/gender is: Male or Female. Get it confirmed by DNA if you have to’ and ‘NO men, including men who identify as transwomen, should be allowed in women’s spaces or allowed to use the word woman about themselves’. Cisgenderism is evident here through the invalidation of an individual’s understanding of their own gender, and by limiting what it means to be male/female, or to be a woman, to the biological sex someone is born with. This may characterise someone’s gender in a way that is inconsistent to their own understanding of it. There was also hyperbole in the construction of comments, such as ‘Official bodies should recognise matters of fact, not whether I self-ID as a Siamese cat on Tuesdays’. The contrast here between ‘fact’ and a representation of self-definition that is especially fleeting (i.e., one day in the week) and non-human (i.e., Siamese cat) offers a particularly derisory position on self-identification – an aspect of ‘gender criticality’ we explore further below.

Biological sex was also portrayed as undisputedly binary, with little support for the notion of sex as anything other than a dimorphic reality. People with intersex variations were referenced as being a small, and by extension insignificant, ‘outlier’. They were positioned as the exception that proves the rule, and not substantial enough to refute a binary norm. This is demonstrated by comments such as:

Male and female are biological sexes. They are not genders. There are two sexes. (Intersex people make no difference here as they are outliers which do not disprove the existence of sexual dimorphism and certainly don’t demonstrate that sex is a spectrum). (Cisgender Female, 30, bisexual)

This statement was left as an additional comment in response to the opinion statement ‘There are two genders, female and male’. The perceived binary fixedness of biological sex is reinforced, and people with intersex variations are problematically erased.

There were, however, accounts emphasising the facticity and immutability of biological sex couched in more considered ‘gender-based domination’ terms, for example:

Women are oppressed by virtue of their biological sex, not their gender, by both the state and individuals within it. Throughout the world, women face violence from men, often extreme violence and grave discrimination. We cannot challenge this oppression if we refuse to acknowledge its biological basis. … Trans people – along with many others among us who also challenge gender-role stereotypes and expectations – also experience, often severe, discrimination. This must be challenged – but not by denying the oppression that women face by virtue of their biology and wiping out categorisation based on sex. I believe that everyone should have the right to present as they wish, to wear the clothes they want, get involved in the games they enjoy, love who they want. You do not have to be ‘in the wrong body’ to do this.  We as a society must challenge the terrible, oppressive notions that anyone is ‘in the wrong body’ leading to surgical or lifelong hormonal intervention – we need to do all we can to help individuals accept and value the body they have, and help wider society accept that too. (Cisgender Female, 68, lesbian)

There is a lot to examine in this comment but what is immediately interesting rhetorically is the valence attached to two uses of the bottom-line argument around essentialism. Biological sex is presented as foundational, good and an important basis for working to tackle oppression, on the one hand; on the other hand, the essentialist notion of being born in the wrong body – a common experience of trans and gender diverse people – is positioned as problematic and contestable. A cisgenderism framework would take issue too with the problematic transnormativity here. As Ellis, Riggs and Peel (2020: 284-285) outline, transnormativity is the: ‘assumption that there is only one acceptable transgender narrative, shaped by an emphasis on “being born in the wrong body”, and the desirability of gender affirming surgery. Such a narrative discounts the experiences of many transgender and gender diverse people and infringes on their rights to self-determination and bodily autonomy’.

Thus the point of differentiation between a trans-affirming liberal perspective and the one expressed in this quote is, in part, the juxtaposition of trans peoples’ self-determination detracting from ‘the oppression that women face by virtue of their biology’. This perspective suggests a belief that the structural position in relations of inequality caused by biological sex cannot be escaped by living as another gender, and hence prominence is given to biological sex over gender.

The presence of responses to the survey which depicted a landscape of substantial movement towards, and support for, a model of gender that exists beyond the dualistic, binary one that has long been taken for granted were of a sizeable proportion, with over half (53.8%, n=1,668) strongly agreeing or agreeing that gender identity is on a spectrum, and 46.7% (n=1,448) strongly agreeing or agreeing that genders outside of male and female should be recognised as equally valid (e.g., non-binary, agender, genderqueer). These attitudinal responses were supported with comments such as: ‘gender is fluid and unfixed. A simple two-gender binary isn’t representative’ and ‘gender is not binary and non binary people exist’.

However, the sex binary was largely understood by respondents as an immutable, biological reality; challenges to this binary were refuted. And as we mentioned above, those with intersex variations were deemed a small ‘anomaly’ within this model. Resistance towards movement beyond both the sex and gender binaries was characterised by the dismissal of gender as a concept in its entirety and/or the positioning of gender as either inferior to biological sex, or irrelevant or unimportant (e.g., ‘I’m not sure what they [genders outside of male and female such as non-binary, agender, genderqueer] should be recognised as, but sex should be of higher importance [than gender]’). The pre-eminence of biological sex was evident, and persistently used as a bottom-line argument to counter any challenges to the gender binary through its placement as a central, undisputable fact. This is a perspective that aligns with a gender critical approach.

Views for and against self-identifying gender

In addition to the resistance to official bodies recognising whatever identity or status a person claims is theirs when it comes to gender, nearly half of FLaG survey respondents (45.4%, n=1,409) disagreed that legal sex/gender should be decided by individuals themselves instead of being assigned at birth. Cisgenderism is evident here via the apparent investment in the status quo of continuing to assign a gender at birth – a system that may have less later impact on a cisgender person, but is likely to for anyone who is not cisgender, such as endosex trans(11) and non-binary people or non-cis-sexed people with intersex variations (but see Cooper and Emerton, this issue, for discussion of some of the ways that certification of legal gender does have universal impact). For some respondents espousing an anti-self-identification argument this was rhetorically produced as a ‘slippery slope’, and ripe for ‘abuse’. This perspective was evident in responses to survey questions focusing on single-gender organisations (see also Renz, this issue). 53% (n=1,656) of respondents strongly disagreed or disagreed that single-gender organisations must accept anyone who self-identifies with the required gender – demonstrated by comments such as: ‘if you let anyone force their way into any single sex situation, everyone will end up just being whatever gender fits the sport/organisation best impersonating whatever gender is or isn’t allowed’. Many of these comments also used objectifying biological language to delegitimise the experiences of transgender people and their right to self-identify in such spaces, thus cisgenderism is again evident here.

In another instance, one respondent drew an analogy between self-determining gender and self-determining other categories:

Just today, a man in his 60s has claimed the right to self-ID as a 30-year-old. If you allow fantasy claims of disability/ethnicity/sex without certification no administrative system can long survive without collapsing under the weight of the contradictions it’s forced to accept. Self-ID marital status, claim a widow’s pension; self ID age, claim pension ten years early or claim access to school children as a 30-yr-old claiming to be 15. Self-ID as black to get a job at the BBC. Self-ID as any minority – Roma, say – to  get special funding. The list of potential abuses is infinite. The govt etc ‘should’ only recognise facts, those inconvenient things, which are backed up by documentation and interview as necessary. (Cisgender Female, 72, heterosexual)

Here we can see various contrasts at play between ‘fantasy’ and ‘fact’ and notable elisions between the ways in which different legally protected characteristics are differently understood, e.g., people’s ethnicities are not ‘certified’ in the UK, and disabilities are not certified in a singular way. Foregrounding this anti-self-definition position with the immediate risks (‘just today’) and a case which is sufficiently unusual to be reported in the press (Cockburn, 2018) functions to heighten her degree of concern. The changing legal age Dutch case is interesting in that – at least in these data – age as a ‘claimed’ status received the least support from respondents (4.8%). However, there are numerous ways of thinking about age, of which chronological age signified by date of birth is just one. Metabolic age, for example, could be a more useful indicator of ‘age’ than chronology, and in some cultural contexts there is far less facticity surrounding chronological age – births not being systematically or accurately recorded – which opens up a normative space for age-related self-determination.

Another axis to discussion around the determination of categories is whether the change is progressive or not. In the examples below, potential change to binary legal frameworks is positioned as ‘regressive’, and as ‘not progress’:

I am a tolerant person and a lifelong supporter of equality and human rights. I support equal marriage and have gay and lesbian friends and former colleagues. As someone who grew up with older adults complaining that “you can’t tell the girls from the boys” during the 60s, and living through 70s hippies and glam rock, and the gender-bending 80s, I have no issues at all with people dressing and expressing themselves as they wish. My instinct has always been to respect personal choices and to “live and let live” so long as the rights of others are not being threatened.  It appears clear from a number of documented cases that an internally inconsistent ideology which supports a niche social movement has resulted in the rights of others being not only threatened, but breached. People who should know better have abandoned critical thought and are pandering to the wants – not rights – of  a minority of people who appear to be in the thrall of this ideology and are intent on silencing those who question or challenge through shaming them as hateful heretics. It appears to be a clear case of the Emperor’s New Clothes, with many academics and even funding bodies having taken leave of their senses. This new totalitarian trend is not liberating. It is profoundly disturbing and regressive.(Cisgender Male, 67, sexuality undisclosed)

While elements of the above respondent quote are vague (‘documented cases’, ‘internally inconsistent ideology’, ‘people who should know better’) the rhetorical construction of the account manages the accountability of the respondent as a member of a tolerant and liberal majority, positioned in contrast to a ‘niche social movement’. An aspect of cisnormativity (akin to heteronormativity) would be positioning the attainment of rights and recognitions that the majority enjoy (in this instance a legal status reflective of lived experience) as undermining cisgender people’s rights. Cisgenderism is explicitly articulated here. There is anger evident too in the account below, but to focus just on the lack of progress claim around gender diversity, this too is produced through a cisgenderist lens. Applying the term ‘a nonsense’ to how trans and gender diverse people understand and may label their body parts is unequivocally delegitimising:

As a 66 year old feminist who has rejected restrictive gender stereotypes to achieve what I have, who have brought up two children to reject them too, I am aghast and angry and just about sick to death of the casual, lazy but also deliberate ‘confusion’ of sex and gender in the debate about these issues. ... The idea that if a man self IDs as a woman and has a penis then that penis becomes a “lady dick” is a nonsense. This is not progress.​ (Cisgender Female, 66, heterosexual)

There was, however, also some evidence of a more pro-self-identification approach, in which a gender spectrum was recognised and de-pathologisation was called for. The four quotes below illustrate a more positive or libertarian stance on self-identification of gender:

My legal gender is female but I have always been uneasy about “womanhood”, so I was saved from distress by the Women’s Liberation Movement and its more fluid understandings of being a woman. I'm too old now to declare gender neutrality but I'm interested in following the debates. (Cisgender Female, 72, bisexual)​

I have become even more certain that, regardless of what sex we are born, each one of us can be located somewhere on a spectrum of maleness to femaleness and some of us can cheerfully hold both aspects within our psychological makeup. (Cisgender Female, 71, pansexual)

Self certification should be permitted and a medical diagnosis should not be required. (Cisgender Female, 37, lesbian)

The emphasis on medical transition is still too strong in the old GRA. But the self-declaration for passports and drivers’ licenses is good – just expensive and so inaccessible. The real issue is the lack of recognition of non-binary lives. Non-binary people are in the majority of trans people in the UK so denying them recognition is unjustifiable and impacts their everyday lives. (Cisgender Female, 27, bisexual)

There are a number of interesting observations that can be made about these comments, the first being that they are all made by cisgender people who are legally female, and second they span an age range of nearly fifty years (27-72 years). They are also from people not identifying as heterosexual. These considerations around the ‘demographic characteristics’ of these participants trouble, at least in some small sense, the notion that an anti-self-identification perspective is especially associated with cisgender (older) heterosexuals or lesbians.(12) We can also see hints at gender diversity in these notionally cisgender accounts. For example, in the first comment the 72 year old writes they are ‘too old now to declare gender neutrality’, whereas in the final comment, from the 27 year old, ‘non-binary people are in [sic] the majority of trans people’. This signals perhaps the ‘newness’ of diverse understandings of gender. By contrast, the 71 year old’s comment alludes to the longevity of notions of gender as a spectrum psychologically. And indeed concepts such as androgynous sex roles have been embedded in feminist psychology via Sandra Bem’s work since the 1970s (Bem, 1974). While not using the term cisgenderist about the current legal framework, the last respondent quoted above does note that the denial of recognition of non-binary people ‘is unjustifiable and impacts their everyday lives’.

Younger respondents generally, and in line with the literature on gender identity (see Ellis, Riggs and Peel, 2020 for an overview), reported more diversity in their identities relating to gender (Cover, 2019). 12% (n=86) of respondents aged 18-29 reported their gender as an identity outside of female or male (e.g., non-binary, agender, genderqueer), compared to 1.9% (n=17) of those aged 50 and above. Younger respondents also reported more diversity in their sexual identities. 28% (n=203) of those aged 18-29 reported a sexual identity other than the well-established sexualities of heterosexual/straight, lesbian, gay, or bisexual (e.g., asexual, pansexual, queer) compared to 8.4% (n=75) of those aged 50 and above. A pro-self-identification perspective was also more prevalent in the views expressed by younger rather than older participants. For example, 67.8% (n=495) of respondents aged 18-29 reported that the government should recognise whatever identity or status a person claims is theirs when it comes to gender, compared to 35.7% (n=319) of those aged 50 and above. The younger respondents also displayed more awareness of cisgenderism in law in general than the older respondents, which indicates possible age cohort effects regarding lay attitudes to legal gender.

Overall, then, the findings of our ‘Attitudes to Gender’ survey demonstrated some movement towards a model of gender that exists beyond the dimorphic, binary one that the current UK legal system, and much of society, still reinforces. However, challenges to this system were often outweighed by cisgenderist and endosexist ideas steeped in a commitment to the status quo, positioning a model of binary biological sex as an immutable reality, and prioritising this model above other models of sex/gender and gender identity.

Concluding thoughts

Our project is future oriented, and as well as exploring the current debate around gender in England and Wales, there is an ambition too to help enable that debate to become less adversarial and to move beyond antagonism or mutual disregard. This is echoed by many, including practitioners such as Davidson (2019: 49) who works for the Gender Identity Development Service and recently voiced a ‘wish for this area to be less polarised...My hope [for five years time] would be for us to be much more connected and less adversarial’. An online survey, anonymous as it is and with distance created between the researchers and the researched, is not the optimum research method for furthering connection and mutual appreciation. It has the potential to encourage the ‘research participant keyboard warrior’. People are, generally speaking, far more nuanced and less fierce and forthright in person. It does, however, provide a snapshot of a cultural moment, which is valuable and interesting in its own right.

In the context of a feminist law reform project which aims to create spaces in which different enactments of legal and regulatory frameworks become not just possible but perhaps achieved, perspectives which stress and argue for stasis are potentially troublesome. If we are to take ‘alternative understandings seriously’ (Renz, 2019) then – on the face of it – these findings offer a strong steer towards the regulatory status quo (cf. Cooper, this issue; Cooper and Emerton, this issue). There is a dismissal of ‘gender’ as a legitimate category in favour of a binary distinction between ‘sexes’ that are seen as outwith the scope of individual interpretation. This begs the question of whether applying a cisgenderism framework to these data is, indeed, taking views which – ultimately – situate gender/sex as a ‘special case’ seriously. We could suggest that positions that bolster the status quo (i.e., a retention of two legal categories; sex/gender segregated provision) are simply antithetical to the aims and goals of the project and thus are sufficient grounds not to present these as evidence of a lack of appetite for legal change.

We could also have recourse to scientific arguments around skewed and/or non-representative samples as a mechanism for accounting for, and dismissing, the main perspective in these data. We prefer, however, to move beyond this apparent appetite for the status quo through both engaging with these perspectives, exploring their rhetorical construction, examining how a cisgenderism framework refracts them and situating sex/gender alongside other salient categories. In other words, if sex/gender is decentred and analogies drawn to other ‘protected characteristics’ – such as sexual identity – then the grounds for the anti-self-identification perspective are less persuasive. Applying a cisgenderism framework, alongside allied concepts such as heterosexism, moves claims and counter claims of being prejudiced or bigoted to a less individual more societal/cultural level. It perhaps has potential if not to diffuse, at least to reposition, the personalising that is manifest in public perspectives on this issue.

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