From Gender Recognition to Transgender Discrimination – Addressing Essentialism and Assimilationism in the Law

How should official documents record the sex/gender of transgender people? Should transgender women be able to access female bathrooms? In the United Kingdom and the European Court of Human Rights, the law has often dealt with such issues through the lens of “gender recognition”, that is, on what criteria should the law recognise the gender of a person. This paper will critique this gender recognition jurisprudence from the perspectives of essentialism and assimilationism, two concepts which work both in tandem and in tension with each other to disadvantage minorities. It will then assess whether a shift from the lens of “gender recognition” to that of “transgender discrimination” might address such concerns. In doing so, lessons will be drawn from disability discrimination law. The paper will finally conclude with thoughts about the relevance of essentialism and assimilationism, and identity politics more generally, to discrimination law.