Transgender people ask to be able to be recognized and live in society in accordance with their feelings, that is to say their gender identity. Intersex and non-binary people regret having one of the two sex categories imposed on them, when neither corresponds or suits them. These are requests that some may find marginal, but which we can also consider legitimate. In any case, they provide the opportunity to reflect on the role that gender categories play in society and the way in which they are intertwined in our legal and administrative system.
The legislator responded with Law No. 2016-1547 of November 18, 2016, which gives the possibility of modifying under certain conditions the legal sex recorded in civil status. However, even if we consider the request of transgender people to be legitimate, this response poses several problems. Indeed, gender identity is not sex. Changing the legal sex, when the biological sex of the person does not in reality change completely, is in a way to deceive the civil status. It’s unfortunate. Sex and gender identity are two distinct characteristics of the person and recognizing the second does not imply modifying the first or amalgamating the two. Moreover, the Court of Cassation rejected the possibility of introducing a third sex categoryleaving intersex and non-binary people unsatisfied.
To resolve these problems, it is possible to consider several options: enriching the information recorded about the person, modifying their nature or, on the contrary, reducing them. All this leads more generally to reflect on the justification and usefulness of the legal notion of sex. On the enrichment side, we could start by creating a third legal sex category, in order to grant official recognition to intersex people who wish it. Second, rather than reporting sex by gender identity, it should be possible to simply record both. By default, the person’s gender identity would be assumed to match their sex recorded at birth. But it could be modified by simple declaration and added in the margin of the birth certificate.
Likewise, a freely chosen title (Mr., Mrs., and at least a third category to be defined) could be added to identity documents. All without requiring evidence or a court judgment, which would be progress for transgender people. This solution would nevertheless have the disadvantage of making the discrepancy between sex and gender identity excessively visible, when on the contrary the people concerned often want to go unnoticed in the desired gender.
Should the mention of sex be removed from civil status and identity documents?
The question therefore arises as to whether there is reason to keep the sex once the person’s gender identity has been recorded. Because ultimately, what is the justification for recording sex in civil status, then reporting it on identity documents and finally on all administrative forms? Most administrations and companies that collect our personal information do not need to know our gender and do not really have the legitimacy to ask us.
The mention of sex on identity documents also raises questions. After all, gender is not an identifying characteristic of a person that one can afford to check during an identity check. It is the photo and biometric fingerprints that identify the person. If common social practices, which sometimes require an identity check, do not refer to sex but to civility, then sex could disappear from identity documents without harm. Even in the medical context, sex is just a shorthand way to encompass certain information about our organs and physiology. But with or without this shortcut, it is our relevant physical characteristics that health professionals must directly question.
Does gender concern private companies and the State?
If we follow this line of reasoning, is it really necessary to have a legal notion of sex recorded on the birth certificate? Does the sex of people really concern the State? Historically, this undoubtedly resulted from a form of evidence: it served to ensure that marriages were only celebrated between people of opposite sexes. This was also made necessary by different legal provisions for men and women (military service, right to vote, maternity leave).
We can consider that most of these uses are now obsolete or can be reformulated (for example introducing the notion of “gestational” leave for pregnant people). It remains that sex and the words “man” and “woman” are mentioned many times in the Civil Code. Replacing them with adequate substitutes would require significant grooming, including certain jurists nevertheless assure that it is possible and desirable. Making legal sex disappear is an iconoclastic proposal, but not necessarily insane, which deserves to be debated.
Whether we choose to remove legal sex or to make it coexist with gender identity (by including at least three categories) on the birth certificate and/or on identity documents, any of these solutions would be more coherent than the conflation currently made by the 2016 law between sex and gender identity.
In any case, official recognition of gender identity should not result in any automatic access to currently segregated spaces (toilets, locker rooms, prisons, or even sports competitions), because access to these places or competitions generates irreducible conflicts of interest between different categories of the population. Careful consideration should therefore be given to whether access to each of these spaces should be segregated by sex, by gender identity, by other criteria, or not at all.