The Brain-Sex Binary in Law: The influence of neurological theories of sex and gender on legal decision-making for trans and intersex minors
- Publication Type:
- Thesis
- Issue Date:
- 2021
Open Access
Copyright Clearance Process
- Recently Added
- In Progress
- Open Access
This item is open access.
In this thesis I examine how law determines and differentiates ‘male’ and ‘female’ in a series of contested areas of sexed identity, namely those cases authorising medical interventions to alter the embodied sex characteristics of transgender and intersex minors.
The brain is the latest candidate in an historical search for a reliable and fixed biological marker of ‘true sex’ that has permeated every aspect of Western culture, including law. Different physical characteristics, from gonads to hormones to chromosomes to genitals, have previously been candidates for a fixed, universal, and authentic marker of sexed identity. Each of these has, in its time, done the work of configuring binary sexed biology as normal, natural, and pre-cultural. Each, in turn, has faltered or failed as a convincing biological anchor for the binary sex categories of male and female. Attention has most recently turned to the identification of a brain sex binary in the discipline of neuroscience. This thesis critiques this most recent turn as well as the sometimes uncritical endorsement of this perspective by law and legal actors.
Ultimately I argue that law’s reliance on neurology’s ‘brain sex binary’ is no more helpful than earlier biological measures in ensuring just outcomes. Rather I argue that what is needed is greater acceptance of dynamic complexity and diversity in the domain of sex/gender. Law must retreat from its aspiration to create, define, and regulate artificially bounded sex categories of male and female which can lead to violations of embodied integrity and a betrayal of autonomous rights of intersex minors.
Please use this identifier to cite or link to this item: