SCIENCE AND THE LAW

Science has had a huge impact on the law. No contemporary crime scene would be complete without a corps of white-coated technicians taking samples or making measurements. But this extra information has no influence on the legal process. The rules of evidence are not altered, the methods of arriving at a verdict are the same, the sentencing policy is untouched. Psychiatrists may be asked to assess a perpetrator's mental state, but the court decides whether this alters its view of responsibility, and the psychological consequences of an action may influence how a court assesses injury. But there are circumstances in which science can influence the composition of the law, or the process by which it is operated. This is one way in which changing cultural or social conditions are – eventually – reflected in the law. The issues surrounding gender identity are a prime example. It is thus essential that lawyers know what science can tell them and, equally, where its limits are: what is not known, or uncertain, as well as what is known.

the term ‘intersex’ originally referred to those with genitalia that were indeterminate, so complicating or confusing gender assignment at birth. In extreme cases, this meant that the individual's genitalia did not correspond with his/her gender identity. However, a similar disassociation occurs if the person's gender identity does not correspond with his/her genitalia, the latter being the form expected on the basis of chromosomal constitution (XY – male, XX – female). The appearance of an individual's genitals can have profound effects on self-image. So, aberrations in gender identity are also part of ‘intersex’ (i.e. a dissociation between the brain and the genitals). The brain and the genitals are intertwined and the term ‘intersex’ incorporates them both. Gender identity raises many of the same legal questions as disturbances in the development of the genitalia. Current legal debates surrounding gender identity, a relatively new problem for the law, come up against the long-standing and copious body of information on the science of sexuality.