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Our legal lives as men, women and persons

Published online by Cambridge University Press:  02 January 2018

Ngaire Naffine*
Affiliation:
University of Adelaide
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Abstract

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To be recognised as a legal person is to be individualised: it is to be rendered a separate and distinct being, the unitary bearer of rights and duties. By contrast, to be assigned a legal sex is to be grouped with others, to be placed within one of only two sexes, as either a man or a woman, a necessarily crude dichotomy. It is to be legally defined by the characteristics we are said to share with half the human population rather than regarded as an individual in our own right. This paper entails a critical comparative analysis of the legal concept of person and the legal concept of sex: of maleness or femaleness. It questions the logic and defensibility of this double characterisation of our legal lives. How can law reconcile its deep commitment to individualism with its persisting commitment to a two-sex system?

Type
Research Article
Copyright
Copyright © Society of Legal Scholars 2004

References

1. Alfred North Whitehead Science and the Modern World (New York: Macmillan, 1925), quoted in Susanne K Langer Philosophy in a New Key (Cambridge, Mass: Harvard University Press, 1942), as extracted in Mary Warnock (ed) Women Philosophers (London: Everyman J M Dent, 1996) p 112.

2. Susanne K Langer Philosophy in a New Key, extracted in Warnock (ed), above n 1, p 119.

3. The registration of births requires the sex, but not the race or religion, to be registered and the parents have no choice in either the fact of registration or the sex of their child.

4. The corporation as legal person seems to escape the requirement to have a sex but see Suzanne Corcoran ‘Does a Corporation have a Sex? Corporations as Legal Persons’ in Ngaire Naffine and Rosemary J Owens (eds) Sexing the Subject of Law (New South Wales: Law Book Co and Sweet & Maxwell, 1997) p 215.

5. Until July 2004, these measures were essentially surgical and chemical. With the passage of the Gender Recognition Act (UK), which received the Royal Assent on 1 July 2004, a medically diagnosed condition of gender dysphoria will also suffice.

6. That is to say, whenever law demands that I state my sex I am obliged to supply it. I cannot abstain. Of course my legal sex does not play an explicit role in all my legal relations. It is central to my marriage, but it has little to do with my ownership of my car.

7. The view that our legal relations (rather than our intrinsic natures) constitute us both as persons and as sexed individuals is not universally held among jurists. However it will be the view defended in this paper, for reasons that will become apparent.

8. Judge Martins remarking in his dissenting opinion in Cossey v UK [1990] 13 EHRR 622, and cited by Chisholm J in Re Kevin (validity of marriage of transsexual) [2001] January Fam CA 1074, para 202. Cossey has since been overturned by Goodwin v UK, I v UK (2002) 35 EHRR 18. See further R Sandland’ Crossing and Not Crossing: Gender, Sexuality and Melancholy in the European Court of Human Rights, Goodwin v UK, I v UK‘ (2003) 11 Feminist LS 191.

9. As the trial judge stated in Re Kevin (validity of marriage of transsexual) [2001] Fam CA 1074, para 281: ‘On the face of it … there is no problem about parties agreeing that an insurance policy relating to a man should apply terms normally applied to a woman, or even, I suppose, that a contract could deem a man to be a woman or vice versa …’

10. As Max Weber asserted, ‘The term “individualism” embraces the utmost heterogeneity of meaning’: M Weber The Protestant Ethic and the Spirit of Capitalism, as quoted in Steven Lukes Individualism (Oxford: Basil Blackwell, 1973) p 43.

11. For a recent philosophical account of this legal need to impose unity on the corporation see Philip Pettit ‘Collective Intentions’ in Ngaire Naffine, Rosemary Owens and John Williams (eds) Intention in Law and Philosophy (Dartmouth, Aldershot: Ashgate, 2001) p 241.

12. Article 7 of the Universal Declaration of Human Rights 1948, for example, asserts that ‘All are equal before the law and entitled without any discrimination to equal protection of the law’. Article 2 provides a non-exhaustive list of unacceptable distinctions which include ‘race, colour, sex, language, political… opinion, national or social origin, property birth or other status’. Similarly the US Declaration of the Rights and Duties of Man 1948 declares that ‘All persons are equal before the law … without distinction as to race, sex, language, creed or any other factor’ (art 2).

13. This was Rawls' good instinct when he invoked the veil of ignorance. See John Rawls' A Theory of Justice (Cambridge, Mass: Harvard University Press, 1971).

14. Anti-discrimination legislation proscribes discrimination against the intellectually and physically disabled, children and women (which of course carries the implicit confirmation that the legal norm of humanity is the intellectually and physically able adult man).

15. Mary Midgley ‘Sex and Personal Identity’ in Mary Midgley Utopias, Dolphins and Computers: Problems of Philosophical Plumbing (London and New York: Routledge, 1996) p 73.

16. Midgley, above n 15.

17. Immanuel Kant The Metaphysics of Morals trans Mary Gregor (Cambridge: Cambridge University Press, 1991). To Kant ‘Humanity itself is a dignity: for a man cannot be used merely as a means by any man … but must be used at the same time as an end’ (p 255).

18. This statement perhaps overdraws the distinction between persons and property though it is common to do so. In truth there are entities whose status seems to hover somewhere between the two concepts. The human dead body is one such entity; the human foetus is another.

19. The historical and philosophical background of this modern legal understanding of animals is explored in Mary Midgley Animals and Why They Matter: A Journey Around the Species Barrier (Harmondsworth, England: Penguin, 1983). A more sustained analysis is to be found in Mary Midgley Beast and Man: The Roots of Human Nature(Ithaca, New York: Cornell University Press, 1978).

20. On the legal and moral distinction between persons and property see Margaret Davies and Ngaire Naffine Are Persons Property? Legal Debates about Property and Personality (Dartmouth, Aldershot: Ashgate, 2001).

21. This was precisely the move from status to contract.

22. Naffine, Ngaire Who are Law's Persons? From Cheshire Cats to Responsible Subjects’ (2003) 66(3)Google Scholar MLR 346.

23. The choice of pronoun is deliberate; the reasons for the choice of male rather than female pronoun should become apparent over the course of the paper.

24. F H Lawson ‘The Creative Use of Legal Concepts’ (1957) 32 NYULR 907 at 915.

25. D P Derham ‘Theories of Legal Personality’ in Leicester Webb (ed) Legal Personality and Political Pluralism (Melbourne: Melbourne University Press, 1958) pp 1, 5.

26. Hans Kelsen General Theory of Law and State (New York: Russell and Russell, 1945) p 94.

27. Richard Tur ‘The “Person” in Law’ in Arthur Peacocke and Grant Gillett (eds) Persons and Personality: A Contemporary Inquiry (Oxford: Basil Blackwell, 1987)p 121.

28. This is a term employed by Gunther Teubner, in a conversation with the author in March 2003, about the nature of legal persons.

29. To Teubner and Hutter, legal persons are “‘virtual realities” [which] are closely linked with the intrinsic psychic dynamics of the people involved, while never merging with them’: Gunther Teubner and Michael Hutter ‘Homo Juridicus and Homo Oeconomicus: Communicative Fictions?’ in Theodor Baums, Klaus Hopt and Norbert Horn (eds) Corporations, Capital Markets and Business in the Law (Den Haag: Kluwer, 2000) p 569 at p 570.

30. For an intriguing discussion of the real fiction of the legal person see Teubner and Hutter, above n 29, p 569.

31. Gunther Teubner Law as an Autopoietic System (Oxford: Blackwell, 1993) p 150.

32. Philippe Ducor ‘The Legal Status of Human Materials’ (1996) 44 Drake LR 195 at 200.

33. David Kinley (ed) Human Rights in Australian Law: Principles, Practice and Potential (Sydney: Federation Press, 1998) pp 4, 5.

34. Natanson v Kline 350 P 2d 1093 atl 104 (S Ct Kansas, 1960).

35. [1984] 1 WLR 1172 at 1177.

36. Clearly corporations do not feature largely in this analysis.

37. Tur, above n 27, p 119.

38. Michael S Moore Law and Psychiatry: Rethinking the Relationship (Cambridge: Cambridge University Press, 1984) p 48. See also Michael S Moore Placing Blame: A General Theory of the Criminal Law (Oxford: Clarendon Press, 1997).

39. Moore (1984), above n 38, p 49.

40. Moore (1984). above n 38, p 3.

41. P3 is therefore very close in conception to Derek Parfit's account of the person. For Parfit, ‘physical continuity is the least important element in a person's continued existence’: Reasons and Persons (Oxford: Clarendon Press, 1984) p 284.

42. E J Lowe Kinds of Being: A Study of Individuation, Identity and the Logic of Sortal Terms (Oxford: Basil Blackwell, 1980) pp 109–110.

43. Lowe, above n 42.

44. Of course there is an international Convention on the Elimination of Discrimination Against Women and there is also domestic anti-discrimination legislation. But the point of such legislation is not to endow women with a specific legal character as female human persons but rather to disqualify sex as a legitimate category of discrimination.

45. And of course they have a number of other distinguishing characteristics. But the thesis of this paper is that sex remains one of the most fundamental biological and social categories which is explicitly recognised and imposed by law.

46. Certainly Parfit does not require bodily continuity for continuity of the person.

47. As Katherine O'Donovan made plain in Sexual Divisions in Law (London: Weidenfeld and Nicolson, 1985).

48. For a discussion of the emergence of modern legal personality and the possessive individual see Naffine and Davies, above n 20, p 63.

49. Human rights instruments of the twentieth century openly condemned the practice of discriminating between and against persons according to the old legal statuses.

50. Though a High Court decision, the essentially biological approach to sex determination adopted in this case has remained English common law since 1970 and has recently been affirmed by the House of Lords in Bellinger v Bellinger [2003] UKHL 21. See S Cowan “‘That Woman is a Woman!” The Case of Bellinger v Bellinger and the Mysterious (Dis)appearance of Sex: Bellinger v Bellinger [2003] 2 All ER 593’ (2004) 12(1) Feminist LS, forthcoming. However this situation will alter dramatically with the implementation of the Gender Recognition Act (assented to 1 July 2004).

51. For a detailed critical account of the English, US and Australian transsexual jurisprudence see Laura Grenfell ‘Making Sex: Law's Narratives of Sex, Gender and Identity’ (2003) 23 LS 66.

52. Corbert v Corbett (otherwise Ashley) [1971] P 83 at 106.

53. Consequently there is no perceived need to provide a legislative definition. Thus the Births and Deaths Registration Act 1953 (UK) requires the entry of the sex of a child on the birth certificate but does not provide a definition of sex. The practice of the Registrar is to follow Ormrod J in Corbett and employ purely biological criteria.

54. Corbett v Corbett (otherwise Ashley) [1971] P 83 at 104. This biological approach to the endeavour of a person to change sex was rejected by the Full Court of the Australian Family Court in A-G for the Commonwealth v Kevin and Jennifer on 21 February 2003.

55. The scope of the concept of person, in particular, is disputed - should it exclude animals, as it does? Should it include corporations as it does?

56. Thomas Mautner (ed) The Penguin Dictionary of Philosophy (London: Penguin, 2000)p 375.

57. Lowe, above n 42, pp 5–6.

58. Lowe, above n 42, p 1.

59. Michael S Moore ‘A Natural Law Theory of Interpretation’ (1985) 58 S Cal LR 277 at 294. Moore is not wishing to deny that scientific knowledge of death can change and therefore so too can its meaning. Thus ‘Whether a person is really dead or not will be ascertained by applying the best scientific theory we have about what death really is’ (at 294). And indeed the legal meaning of death has changed under the influence of science. We now have ‘beating-heart’ cadavers, who are legally dead (that is whole brain dead), but whose organs are artificially sustained for the purpose of organ transplants to the living.

60. While the Australian departures from the English biological essentialist treatment of sex admit the effects of culture and the preference of the individual, they preserve a firm biological foundation of the definition of sex. One starts with genitals and hormones. Then surgery and society is allowed to influence the definition. The Australian approach does not question the underlying assumption of the trans-gender jurisprudence that sex difference (however it is defined) must exist and be legally recognised.

61. The Births and Deaths Registration Act 1953 (UK) requires the sex of a child to be entered on the birth certificate. It does not however supply a legislative definition of sex, for reasons discussed below.

62. A dramatic instance of compulsory sexing causing humiliation and injury is the imprisonment of a man who dresses and lives as a woman in a prison for men. The surgical assignment of intersex babies to one sex or the other may be regarded as another illustration of the brutality of sexing.

63. Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130 at 133, per Wilde JO provides the classical common law definition of ‘marriage’ as the union of ‘a man and a woman’. This definition has very recently been declared by the Court of Appeal of Ontario to be in violation of the Canadian Constitution in that it denies the equality rights of same-sex couples. See Halpern et al v A-G of Canada et al (10 June 2003).

64. P F Strawson in his book Individuals (Garden City New York: Anchor Books, 1963) therefore offered a famous challenge to the dualist account of the person which allows the concept to be divided into mind and body.

65. Though as Rousseau said, men are only men for a little of the time, but women are women for all of the time. See discussion in Grenfell, above n 51.

66. Kant seemed to think this was the case, treating sexual relations as a small but necessary part of his account of the person: above n 17. ‘Sexual love is destined [by nature] to preserve the species’: p 220. However he counselled against ‘defiling oneself by lust’ at p 220.

67. For a critical analysis of the philosophical device of the thought experiment see Kathleen Wilkes Real People: Personal Identity Without Thought Experiments (Oxford: Clarendon Press, 1988).

68. For a critical discussion of the two-sex system in law see Margaret Davies ‘Taking the Inside Out: Sex and Gender in the Legal Subject’ in Ngaire Naffine and Rosemary J Owens (eds) Sexing the Subject of Law (North Ryde, New South Wales: LBC, Sweet & Maxwell, 1997) p 25.

69. The classic survey of the English and United States cases is A Sachs and J H Wilson Sexism and the Law: A Study of Male Beliefs and Legal Bias in Britain and the United States (Oxford: Martin Robertson, 1978).

70. Beresford-Hope v Lady Sandhurst (1889) 23 QBD 79 at 83. Here the court was referring to the incapacity of women to vote.

71. As Willes J asserted in Chorlton v Lings (1868) LR 4 PC 374 at 392, the absence of women's right to vote ‘is referable to the fact that in this country … chiefly out of respect for women, and a sense of decorum … they have been excused from taking any share in this department of public affairs’.

72. Such respect for women was declared in Jex-Blake v Senatus of Edinburgh University 11 M 784 at 811 when it was decided that women should not study medicine alongside men at the University of Edinburgh.

73. The exclusion of women from public life has proven remarkably durable. It was not until 1945 that women were admitted to the Royal Society, which has been described as ‘for nearly three centuries the citadel of Britain's scientific elite’. Brenda Maddox Rosalind Franklin: The Dark Lady of DNA (London: Harper Collins, 2002) p 82. And as Maddox observes, ‘Forty-three years had passed since the Society threw out the nomination of the first to be proposed, Hertha Ayrton, an engineer and physicist, on the ground that as a married woman, she was not a legal person and therefore could not be a Fellow of a body governed by statute’ (pp 82–83) Women are still excluded from some of the leading social and professional clubs whose membership includes the nation's most powerful men.

74. Karl Marx Contribution to the Critique of Hegel's Philosophy of Right: Introduction (1844) in Early Writings, p 43, quoted in Lukes, above n 10, p 75.

75. Re Kevin (validity of marriage of transsexual) [2001] January Fam CA 1074.

76. [2001] January Farn CA 1074, para 25.

77. See Kathleen A Lahey Are We Persons Yet? Law and Sexuality in Canada (Toronto: University of Toronto Press, 1999).

78. Hence the legal denial of a specific sex to an intersex person seems almost cruel. See In the Marriage of C and D (falsely called C) (1979) 5 Fam LR 636.

79. Re Kevin (validity of marriage of transsexual) [2001] January Fam CA 1074, para 25.

80. Wilkes, above n 67.

81. Wilkes says just this in a brief footnote on her decision to use the male pronoun in her volume.

82. This is not to say that men have invariably benefited from their sexing as men. The conscription of men to fight in wars can certainly be regarded as a limitation on male freedom and perhaps as an illustration of personification acting in perverse ways.

83. William Blackstone Commentaries on the Laws of England (1st edn, 1765) vol 1, ch 15, p 430.

84. P S Atiyah The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979) p 271. There is a considerable feminist literature on this maleness of the individual: see especially the extensive critiques of Rawls' Theory of Justice, above n 13.

85. Eva Figes Patriarchal Attitudes: My Case for Women to Revolt Explained (London: Panther Books, 1972) pp 164–165.

86. Indeed this is the resolution identified by Mary Midgley in her essay on the tensions between sexing and individualism in the Western philosophical tradition.

87. Unless of course they are trying to ‘pass’ as men by doing their best to approximate a male life. See Catharine MacKinnon Feminism Unmodified (Cambridge, Mass: Harvard University Press, 1987).

88. This thesis that women are defined by their ‘lack of qualities’ has been advanced in its most radical and influential form by Luce Irigaray in Speculum of the Other Woman trans Gillian C Gill (Ithaca, NY: Cornell University Press, 1985).

89. Carole Pateman The Sexual Contract (Cambridge: Polity Press, 1988) p 6.

90. For an overview of the feminist philosophical literature on the problem of the female subject see Andrea Nye Philosophy and Feminism: At the Border (New York: Twayne, 1995).

91. As Anthea Nye has queried, ‘How can a person or group of persons, especially if they are oppressed … come to have an identity independent of how they are seen? If they try to escape established meanings altogether, a terrifying vacuum opens before them. Somehow new meaning must be created, but it is not clear what its source can be’: above n 90, p 62.

92. Even though PI theorists have tended to downplay these politics.

93. Alexander Nekam in The Personality Conception of the Legal Entity (Cambridge, Mass: Harvard University Press, 1938) said something similar: that the legal characterisation of the person will depend on what a given community regards as natural.