The New Constitutional Right to Gender Recognition: A Taxonomy of a Category

The paper discusses a taxonomy of the emerging constitutional right to gender recognition. Examining the constitutional case-law which is mushrooming across jurisdictions, and setting it against trans people’s demands, the paper identifies four types of the right to have one’s deep seated sense of gendered sense recognized in the law: ascriptive binary, elective binary, ascriptive non-binary, elective non-binary. The paper argues that gender recognition is now firmly established as a constitutional right, as a manifestation of widely shared mainstream constitutional principles. However, the paper also warns that the right to gender identity is, in fact, a composite category, with manifestations which are quite different from each other and often lumped together, at times regardless of their profound theoretical and socio-legal differences and implications.