Producing Sex
A Semiotic Genealogy of Trans and Non-Binary Exclusion in UK Law
Abstract
Legal interpretation operates through rhetorical claims to discovery whereby courts purport to ascertain the meaning of language via the neutral application of interpretative rules developed and refined throughout legal education. This article demonstrates that such claims constitute Barthesian myth, a second-order semiotic operation in which contingent, historically produced meaning is presented as natural, self-evident, and innocent of its own construction (Barthes 1972: 129-130; Boer 2011: 218). This article will show that judicial interpretation, rather than discovering meaning, produces it, whilst simultaneously erasing the productive mechanisms through which interpretation operates.
Deploying semiotics through the work of Roland Barthes (1972), Charles Sanders Peirce (Hartstone, Weiss & Burks (eds) 1931-1958), and Eco (1976), Foucauldian genealogy (Foucault 1978), Butlerian performativity theory (Butler 1990), and Elena Gambino’s (2020) account of recursive power, this article traces the discursive production of sex across UK jurisprudence from Corbett v Corbett (1971) through R (Castellucci) v Gender Recognition Panel (2025) KB 577 and For Women Scotland v Scottish Ministers (2025). This genealogy illuminates discontinuity rather than continuity: the signifier “sex” emerges through contradictory epistemic regimes, each asserting access to a stable, pre-legal truth. Notably, the deliberate linguistic conflation of sex and gender in the Gender Recognition Act 2004, designed by its drafters purely and simply to confound future debates, exemplifies the productive rather than declaratory character of legal language and For Women Scotland’s declaration of plain biological meaning accomplishes what Charles Stivale (2002: 465) terms “revolutionary ex-nomination”, naturalizing contingent interpretation whilst occluding over two decades of divergent juridical practice.
Castellucci demonstrates what is at stake: non-binary subjects rendered legally impossible through law’s iterative performance of binary categories, compelled to present what Mairead Losty and John O’Connor (2018) term a “false self” based on biological sex whilst concealing their experienced identity. This semiotic critique exposes judicial interpretation’s concealment of productive power, revealing how claims to discovery constitute violence against lives unintelligible within law’s binary framework.
Keywords: semiotics; legal interpretation; trans law; non-binary; Barthes; Foucault; Butler; UK equality law; gender recognition.
Downloads
Downloads
Published
Issue
Section
License
Those who contribute items to Amicus Curiae retain author copyright in their work but are asked to grant two licences. One is a licence to the Institute of Advanced Legal Studies, School of Advanced Study, University of London, enabling us to reproduce the item in digital form, so that it can be made available for access online in the open journal system, repository, and website. The terms of the licence which you are asked to grant to the University for this purpose are as follows:
'I grant to the University of London the irrevocable, non-exclusive royalty-free right to reproduce, distribute, display, and perform this work in any format including electronic formats throughout the world for educational, research, and scientific non-profit uses during the full term of copyright including renewals and extensions'.
The other licence is for the benefit of those who wish to make use of items published online in Amicus Curiae and stored in the e-repository. For this purpose we use a Creative Commons licence (http://www.creativecommons.org.uk/); which allows others to download your works and share them with others as long as they mention you and link back to your entry in Amicus Curiae and/or SAS-SPACE; but they can't change them in any way or use them commercially.
