As non-binary people, do we really want legal recognition, or should we be fighting to abolish gender categories entirely?

Opinion: Do we even want legal recognition for non-binary people?

C Benedict is the presenter of NB: My Non-binary Life on BBC Sounds, an audio presenter and producer. They make work about identity and the arts for radio, podcasts and online.

The long-awaited government response to the Gender Recognition Act consultation has arrived, with very limited changes after two years of speculation and increasingly panicked dialogue in my group chat. 

In brief, the fee for legal gender recognition is going to be scrapped, and very little else has changed.

Of the many demands for Gender Recognition Act reform that were put forward by trans campaigners and ignored by the government, one was legal recognition of non-binary people. The government’s own national LGBT Survey suggested that 53 per cent of trans people in the UK are non-binary (although this was a self-selecting online survey, so we must allow for the possibility that non-binary people are more likely to be extremely online). 

Many specific examples of ways in which current policy negatively impacts non-binary people were included in the government report analysing the GRA responses, including access to transition-related healthcare, with one response quoted in the report saying: “People are made to prove ‘how trans they are’. This should end.”

Buried 130 pages into the report comes an acknowledgement that “there seemed to be an increasing number of people who identified as non-binary”, but that “there were complex practical consequences for other areas of the law, service provision and public life if provision were to be made for non-binary gender recognition in the GRA”

Complex practical consequences

To visualise this, I imagine an A4 piece of paper with big black letters reading GENDER: X being pulled through a 20-year-old fax machine, which immediately catches fire and inadvertently blows the fuses all across Whitehall. 

We’ve been put in the Too Hard Basket, which has then been transformed into a Too Hard Can, which has now been kicked down the road.

Or, more literally: all our bureaucratic structures are capable of changing a letter in a little box from M to F or F to M, but that box does not have room for other letters.

Non-binary people are a stick in the spoke for a system of government that loves its paperwork. We’ve been put in the Too Hard Basket, which has then been transformed into a Too Hard Can, which has now been kicked down the road. 

And you know what? Good. Within this system, at this time, we need to ask ourselves as non-binary people what good, safe, legal recognition would look like. And I don’t believe that creating a third gender category – an X, an Other, a Neither of Those – is the way to do that. 

I don’t want my name anywhere on a list of Gender Traitors that any government can access. That might sound extreme but considering how many times fascism has visited Europe in the last hundred years I don’t think it’s an unreasonable concern.

Jamie Windust, who previously campaigned for an X marker on passports, has reflected that a development like that might actually make us more vulnerable. Which begs the question – why is there a gender marker on our passports? Or anywhere? If you’re having to distinguish between three people called “Karen Smith” on record, then a little F in the corner is unlikely to help.

When you apply for a job, the only other demographic information you provide is on the hermetically sealed Diversity Reporting page, kept separate from the application and theoretically from those who make the decisions. Why should gender take such precedence in our public life? 

The baseline of this argument is: abolish gender.

But that is the really complicated thing here, because the baseline of this argument is: abolish gender (legally). And that sounds and feels a lot more radical than it is. Because what I’m talking about is a really properly unsexy reassessment of our bureaucracy. Go through every form, DVLA to HMRC to your trampolining club membership, and ask: do these people need to know my gender?

There may be very limited circumstances in which the answer is yes, but the idea that M or F is the default organising principle of society needs to go. And if this government does want to remove layers of bureaucracy, then why not make that one less question for everyone to answer on every government form?

The majority of my non-binary friends who I’ve spoken to about legal recognition share my concerns about the vulnerability that comes with being legally acknowledged as non-binary. But all of us want something, because the two brick walls of binary gender that press on us from both sides chafe and scrape and limit us. But, realistically, the way forward is long, because I believe instead of working towards a Third Category that may only lead to more chafing, we need to commit to the work of removing gender categories entirely where we don’t need them.

The two brick walls of binary gender that press on us from both sides chafe and scrape and limit us.

For now, ensuring that trans medical care continues to recognise and develop a deeper understanding of non-binary identities is the most urgent and vital step. I hope that increasing the number of gender clinics brings about better access and more appropriate care plans for people who fall outside the gender binary. And in the meantime, non-binary people continue to exist and thrive in spaces we are carving out for ourselves.