“Gender is No Substitute for Sex”: A Comparative Human Rights Analysis of the Legal Regulation of Sexual Identity

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.See Johnson “Gender is no substitute for Sex” Daily Telegraph, 24 February 2004. I am being disingenuous here as the author of the article is arguing that replacing the term sex with gender in relation to transsexuality is erroneous and an annoying Americanism, whereas I am arguing that neither term is adequate.Goodwin v. U.K. [2002] 35 E.H.R.R. 18; I. v.U.K. [2002] 2 F.L.R. 518.