Abstract

This paper challenges a view of the Gender Recognition Act 2004 as involving an unequivocal shift from the concept of sex to the concept of gender in law’s understanding of the distinction between male and female. While the Act does move in the direction of gender, and ostensibly in an obvious way through abandoning surgical preconditions for legal recognition, it will be argued that the Act retains and deploys the concept of sex. Moreover, it will be argued that the concept of sex retained is not merely an anatomical understanding, but sex in a biological sense. In this respect the Gender Recognition Act can be viewed as embodying a tension between gender and sex. Further, it is contended that this tension is explicable in terms of irresolution of contrary legal desires to reproduce the gender order and to insulate marriage and heterosexuality from homosexuality in the moment of reform