Legal fictions are statements that are not true, but which the law treats as if they are true. These fictions are convenient devices to solve tricky problems in law. It can make sense at times, for example, to treat a corporation as if it was a person. Here, It is clear what is fiction and what is fact - no-one thinks that Marks and Spencer plc is a person, even if it was founded by an actual Marks and an actual Spencer, and is treated as if it was a person in legal disputes.
But the discrepancy between fiction and reality can come back to create problems that were either not foreseen by the lawmakers or were denied by them. The problems are particularly acute if things are set up in such a way that we are encouraged to view fiction as fact. In three different cases - adoption, surrogacy, and ‘gender recognition’ - what is recorded on a person’s ID has become particularly problematic.
Adoption - when a fiction can become a lie
The Adoption of Children Act 1926 created a legal framework for adoption in England and Wales that attempted to solve the problem of illegitimacy. Children born of unmarried mothers had been considered ‘illegitimate’ because there was no legally recognised father, and only children with a legally recognised father could inherit from him. This problem was solved by taking the child from the mother, and giving legal parenthood to an adoptive family. At the same time, the stigma of the unmarried mother could be erased, it was claimed, by allowing her motherhood to be forgotten. A fiction, that the adoptive parents could be regarded as if they were the original parents, was created, and an an adoption certificate was issued, in place of the original birth certificate, to acknowledge this.
Although the official advice was that children’s emotional wellbeing depended on their being told that they were adopted, it became common for adopters to either conceal the adoption, or, if the adoption was acknowledged, to tell children that their mother had died. What started as a fiction all too often turned into a lie, which, for some, was only discovered when, after 1976, adult adoptees in England & Wales were allowed to access their original birth certificate, which would reveal the truth.
Surrogacy - when a lie erases reality
The Law Commissions in England & Wales and Scotland are currently drawing up a suggested revision of the law governing surrogacy, to make it less restrictive. Their initial proposals are based in some respects on the law governing adoption, but the legal fiction that they want to create suggests that the ‘intended parents’ who have commissioned the child are the parents at birth - the actual mother who has carried the child in her womb and given birth would not be recorded on the child’s original birth certificate. She would be literally erased from the record, though her existence would eventually be acknowledged when the child she had given life to reached adulthood. It is hard to imagine the trauma of discovering when you reach adulthood that you are the product of a surrogacy agreement. It is not something that the Law Commissioners expressed any concern about.
We are, rightly, outraged nowadays by the deliberate falsification of birth records that fuelled the corrupt inter-country adoption trade in the last century, and the profound suffering that it brought about. But the Law Commissions, at the behest of the surrogacy lobby, are openly proposing a repeat performance with domestic surrogacy in this century.
‘Gender recognition’ - when a lie harms us all
Adoption and surrogacy are both real, even if legal fictions disguise that reality. But with ‘gender recognition’ what we are encouraged to recognise as reality is a fiction - a constructed ‘identity’.
In 2004, lawmakers in the UK passed the Gender Recognition Act. It must be one of the most confusingly worded pieces of legislation ever written. It appears to suggest that an adult who has a (highly contested) medical diagnosis of “gender dysphoria”, who has “lived in the acquired gender” (whatever that means) for two years, and who has obtained a gender recognition certificate, can be treated as if they have changed sex, and can change the sex that is recorded on their birth certificate. Except that, by using the term gender both as a stereotype and as a euphemistic synonym of sex, what this actually means is interpreted differently by different people.
A further confusion is created by the Act stating in Section 9 that “the person’s gender becomes for all purposes the acquired gender”, but then identifying exceptions - hereditary peerages (Section 16), sport (section 19), and “gender-specific offences” (section 20). An additional complication is introduced by the Scottish Government’s proposal to allow anyone over the age of 16 to obtain a gender recognition certificate on the basis of self-identification, ie without the need for medical diagnosis. If, as expected, Scottish law on gender recognition changes this month, the Scottish Government intends it to impact not just Scotland, but the UK as a whole.
That a person can change sex is obviously a fiction, as this is not biologically possible. That a person’s birth record can be changed retrospectively on the basis of a subsequent fictional sex change amplifies the denial of reality.. But the legal fiction is increasingly treated as if it is fact, and this has significant consequences, not just for those who have acquired a gender recognition certificate. By normalising a belief that its is possible to change sex, the creation of these certificates has encouraged anyone, for whatever purpose, to self-identify as being of the opposite sex. And it gaslights us into reinforcing an ideology that denies the reality of sex, with massive implications for all of us.
In less than two decades, we have moved from a situation where a few individuals with gender recognition certificates can, for some purposes, be treated as if they had changed sex, to one where anyone who self-identifies as the opposite sex can expect be treated as such in all situations. Thus males can feel entitled to compete in women’s sports and use women’s changing rooms, lesbians and gay men can be told to accept people of the opposite sex as sexual partners, sex offenders can change their identity to avoid safeguarding checks, convicted rapists can demand to be housed in a women’s prison if they say they are women, and say they are men again when they are released from prison, etc, etc. And women are accused of committing a hate crime if they challenge any of this.
All women, all men, and all children are affected in some way by acceptance as fact the legal fiction that one can change sex. It doesn’t end there, though, as we are now being asked to pretend that sex doesn’t exist, even at birth. In 2017 the Yogyakarta Principles (suggestions made by a lobby group in 2006 for law changes to include allowing individuals to change the sex recorded on identity documents) were expanded to call for sex not to be recorded at all - even on birth certificates.
That erasure of sex as a legal category is part of a wider strategy to deny biological reality was made clear earlier this year in an Economic and Social Research Council funded project. This academic research project asks us to “imagine a society where sex is not recorded on birth certificates”, on the grounds that recording sex “formally places people, from birth, in unequal social categories of female and male”. Instead of sex being a biological category, with social consequences that can be changed by political action, we are asked to believe that sex is a social category that can be dismantled by simply not recording it.
At the same time that ever increasing amounts of data are being harvested to construct, sell to, and police our Digital ID, these lawyers want to do away with documents that record a key element in what connects us with the physical reality of being human - our sex.
In the next post I shall look at how reductive language is used to reinforce the denial of reality that these legal fictions have normalised.
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Legal fictions around our dissociation only serve to solidify our dissociation and drive us further into chaos. Sex is our tether to reality, when this is dismantled we may be unable to find our way out of the virtual world being organized on top of reality.