This paper argues, first, that the legal construction of transsexualism is a matter of interest, not only to members of the trans community, but to all students of gender, including feminists. The paper then proceeds to explain and analyse, using feminist perspectives, key aspects of the Gender Recognition Act 2004 in the light of the recent caselaw concerning the rights of trans persons. The 2004 Act, it is argued, is a conservative move, which attempts to deny the threat transsexualism poses (...) to the binary system of gender, by instigating a system to formally ‘recognise’ only men and or women. However, the way in which the Act constructs the public/private divide and the mind/body relation carries potential for legal recognition of subject positions which may in a variety of ways be ‘beyond’ the binary system that is currently orthodox. The paper can as such be read as a case study in the legal (re)construction of gender, the gender/sex relation, and the widespread tendency to construct gender conservatively. (shrink)

U.K. regulation of sexual identity within a marriage context has traditionally been linked to biological sex. In response to the European Court of Human Rights decisions in Goodwin and I.,2 and in order to address the question of whether a transsexual person can be treated as a “real” member of their adoptive sex, the U.K. has recently passed the Gender Recognition Act 2004. While the Act appears to signal a move away from biology and towards a conception of sexual identity (...) based on gender rather than sex, questions of sexual identity remain rooted in medico-legal assessments of the individual transsexual body/mind. In contrast, because transsexual people in some parts of Canada have been able to marry in their post-operative sex since 1990, contemporary debates on the sexual identity of transsexual people in British Columbia and Ontario do not focus on the validity of marriage, and more frequently centre upon the provision of goods and services, in human rights contexts where sex is said to matter. Currently in Canada this is prompting questions of what it means to be a woman in society, how the law should interpret sex and gender, and how, if at all, the parameters of sexual identity should be established in law. This article seeks to compare recent U.K. legal conceptualisations of transsexuality with Canadian law in this area. As human rights discourse begins to grow in the U.K., the question remains as to whether or not gender will become an adequate substitute for sex. (shrink)

This article deploys and extends Ulrich Beck’s critique of ‘zombie categories’ :261–277, 2001) to consider how conjugal relationships are brought into being before the law. The argument presented here is that sexual performatives relating to marriage—and especially, in this instance, consummation—continue to produce a kind of social-legal magic, even as the social flesh of their enactment is rotting. Rules concerning annulment relating to wedding ceremonies, consent, disclosure, and consummation demonstrate that certain frameworks of conjugality involve a kind of corporeal magic (...) animating the privileged place of heterosexual marriage. Thus, rules and regulations pertaining to weddings continue to produce and protect heterogendered, sexually dimorphous bodies, even though this privileging is—or at least, is becoming—socially obsolete. (shrink)