RE-MAKING LAW’S REALITY: AN AVENUE TOWARDS SEXLESS AND GENDERLESS LAW
Abstract
Gender is all-pervasive. It has been such a readily accepted aspect of humanity that our legal systems — the systems that order our society — take its form and permanence as a given. Although it is deeply interwoven into our system of laws, it is not fundamental to its operation. A system of laws that never depends on sex or gender as its touchstone has considerable advantages, and is not as radical a change in thinking as it might at first seem. The past two decades have shown a tendency towards flexibility and sensitivity in the case law concerning the fluidity of gender and sex, but this has not necessarily been reflected in legislation. This experience suggests that legislative attempts to facilitate such fluidity will fail so long as they depend on rigid categories of identity, and that the path towards a genderless and sexless legal system will be better achieved by way of the flexible approach found in case law.
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