“I Don’t Think That’s Something I’ve Ever Thought About Really Before”: A Thematic Discursive Analysis of Lay People’s Talk about Legal Gender

This article examines three divergent constructions about the salience of legal gender in lay people’s everyday lives and readiness to decertify gender. In our interviews (and survey data), generally participants minimised the importance of legal gender. The central argument in this article is that feminist socio-legal scholars applying legal consciousness studies to legal reform topics should find scrutinizing the construction of interview talk useful. We illustrate this argument by adapting and applying Ewick and Silbey’s (1998) ‘The Common Place of Law: Stories from Everyday Life', ‘before’, ‘with’ and ‘against’ typology to interview talk about legal gender, and critique their cognitivist approach by offering a constructionist alternative. In our analysis, we offer a detailed discursive explication of three key legal consciousness themes. These themes offer a balanced representation of a dataset problematically ‘skewed’ towards sex-based rights feminist perspectives, namely that ‘before’ legal gender is an anti-decertification account, decertification would be risky for natal females; a ‘with’ legal gender construction is neither for nor against decertification per se, though the impact of decertification is produced in accounts as limited and unimportant; and ‘against’ legal gender is a pro-decertification classification, as not abolished legal gender is constructed as harmful to already marginalised groups. In concluding, we explore the reasoning for the lack of readiness for decertification currently, and return to the value of examining the construction of lay discourse about legal matters as talk is a form of social action. We suggest that applying discursive analysis to themes in legal consciousness studies enables a refocusing on the how rather than purely the what of divergent legal consciousnesses, and that this approach is a fruitful addition to feminist socio-legal studies.


Introduction
The question of how, and in what ways, a future without legal gender can be prefigured or remains un-contemplatable is our central thread in this article. In the article we bring together tools from discursive psychology (for example, Potter and Wetherell 1987;Wiggins 2017) with insights from legal consciousness studies (Cooper 1995;Ewick and Silbey 1998;Harding 2011) to interrogate, particularly, the interview data with different members of the public (n = 44). In this article we exclusively illuminate how lay people articulate concerns, hopes, unknowns and possibilities when discussing decertifying gender. 1 As the participant quoted in the title of this article suggests, the notion of decertification (i.e., not registering a sex close to birth, see also Renz 2016, 2023) was not generally one that project participants talked about having considered prior to their engagement in the study. As such, applying a 'balanced' triptych of 'before', 'with' and 'against' legal gender discourse-an adaptation and application of the classic legal consciousness studies approach (Ewick and Silbey 1998)-allows for the three main voices within these data to be equally represented and examined.
In the UK, legal gender is enacted through the Birth and Deaths Registration Act 1953, s33 and crystallised via a birth certification process; a binary registration of either female or male sex which, if registered without error, is static and life-long, unless it is formally changed through the Gender Recognition Act (GRA) 2004 (Sharpe 2007). Although the practice of certifying legal gender close to birth with just the designations 'female' and 'male' is changing in a number of jurisdictions globally, the UK retains a 'two categories only' regulatory approach to legal gender. To date, other regulatory frameworks for legally recognising gender in other jurisdictions have included: birth registration and legal recognition of a 'third' or 'other' genders; re-registration to the binary 'opposite' legal gender or a 'third' legal gender as adults; and/or legal recognition of people with intersex variations.
Jurisdictions such as Australia, Germany, Iceland, India, Nepal, and Pakistan (Parsons 2019), have made these various changes and, arguably, this has to an extent influenced the public narrative in England and Wales. However, the culmination of the government consultation on potential reform of the GRA in England and Wales (Government Equalities Office 2018) in autumn 2018 was essentially a re-entrenchment of the same legal mechanism to change from one binary gender to the other, but with some 'modernisations' to the process (Government Equalities Office 2020). The GRA is, however, just one part of the legislative landscape in the UK. Nonbinary people may now become legally protected under the Equality Act 2010 given an Employment Tribunal decision favouring inclusion (Wareham 2020). There has also been growth in gender-neutral drafting of legislation and policy documents (Grabham 2020), which suggests some potential flux and change in how gender is "I Don't Think That's Something I've Ever Thought About Really… produced and understood in law. On the one hand, there has been a growth of social sciences scholarship documenting a burgeoning of ways of understanding gendered and agendered identities within the LGBTIQ 'umbrella' (Cover 2019;Munro 2019;Ellis et al. 2020;Vincent 2020). On the other hand, even those jurisdictions (for example, Tasmania, Iceland) at the forefront of legal developments in this area have not considered decertifying sex/gender as a legal status, and as such this proposition is not on international or national public agenda-at least not as an official proposition (Cooper and Renz 2016;Cooper and Emerton 2020).
This article aims to explore what legal gender status means for different members of the public, and whether (and how) legal gender matters to individuals in their everyday lives. We offer an in-depth exploration of lay participants' perspectives about the salience of legal gender in everyday life through adapting and applying the canonical legal conscious triptych (Ewick and Silbey 1998). In so doing, we demonstrate the significance of studying the construction of talk for feminist legal scholars. As part of a project which aimed to prefigure decertification as a legal proposal, discussion from members of the public was generated through focused questioning rather than arising more spontaneously (cf. Ewick and Silbey 1998). The production of participants' discourse either lexically, or latently (through hedging and other discursive devices) demonstrates that consideration of the phenomena of legal gender and its decertification was indeed largely catalysed via the project's focus. In other words, how lay participants talked about this topic, in terms of both the words they used and the ways in which they spoke, demonstrates ways that the interview questioning was prefiguring and generated new reflections that would not have been elicited without probing on the topic. We further explicate our argument and approach in the following method and analysis sections.

Method
The public perceptions strand of the 'Future of Legal Gender' project (see further Cooper et al. 2022) comprised two main elements, an opportunistically sampled survey (comprising attitudinal statements and open questions) and follow-up interviews which were purposively sampled to mitigate against the 'skew' of the survey sample towards feminists (and others) articulating 'gender critical' anti-trans views. Ethical approval for this strand of the project was granted from Loughborough University Ethics (Human Participants) Sub-Committee. The 'Attitudes to Gender' survey explored people's everyday understandings and experiences of gender, their views on legal gender, and potential options for reform (see Peel and Newman 2020 for detailed discussion on the survey design and recruitment, and for a copy of the survey). An important contextual point about the timing of the survey data collection (October-December 2018) is the partial overlap with the Government consultation on potential reform of the GRA in England and Wales (Government Equalities Office 2018; Peel and Newman 2019). The timing of the survey data collection resulted in an atypically large sample (n = 3101) 2 for a social scientific non-randomly sampled study, in which there was a preponderance of feminist views objecting to trans-inclusion (cf. Cowan 2021).

Interviews
To gain more depth in understanding lay people's hopes and fears about the central question of decertifying gender, we conducted semi-structured one-to-one followup interviews. Interviewees were initially recruited via the survey. Subsequently, we used a range of methods to recruit further interviewees, including targeted correspondence to under-represented groups such as men of all ethnicities and BAME people, in order to aim to ensure that a diversity of view were represented in more depth (see also Newman and Peel 2022). In total, we conducted forty-four semistructured interviews (mean age 42.7 years, range 20-77) with cisgender women (n = 27) and men (n = 8) and trans and gender diverse people (n = 9) of whom 14 were parents of dependent children. 3 Interviewees are pseudonymised when quoted in the analysis section.

Method of Analysis
The interviews were transcribed verbatim and then initially read and re-read to aid the familiarisation process. Subsequently the richest examples of the positions regarding legal gender and reform identified from key survey attitudinal statements (reported in Peel and Newman 2020) were extracted from the interview transcripts. We applied a "flexible deductive" (Fletcher 2017, 182) approach to these data in that we were mindful of Ewick and Silbey's (1998) typology whilst reading the coded data (deductive) but also open to data-derived, inductive, aspects of the data as we organised it into the themes. Invariably there was fluidity in the macro categorisation of the data and, in some cases, participants' articulated perspectives on legal gender which blended categories or merged across the elements of the typology. Once the macro level of analysis was conducted, we then focused on the construction of the talk within themes exploring its function as well as form, a common approach in thematic discourse/discursive analysis (e.g., Taylor and Ussher 2001;Peel et al. 2005).

Interrogating the Construction of Legal Consciousness Talk
In the analysis section we focus on the construction of talk about the impact of legal gender on everyday lives and decertification specifically (see also Emerton 2023 for a discussion of equality governance professionals' perspectives on this topic). Because of this we draw minimally on the survey data collected (utilising relevant descriptive statistics only) and foreground the interview talk as this lends itself much better than survey data to a detailed focus on the how as well as the what produced by members of the public about legal gender. When focusing on the impact of legal gender on everyday lives we apply insights from legal consciousness studies (Cooper 1995;Ewick and Silbey 1998;Cowan 2004;Harding 2011), particularly an adaptation of Ewick and Silbey's (1998) 'before', 'with' and 'against' the law typology taking a plural approach (Harding 2011). Patricia Ewick and Susan Silbey's (1998) analysis was developed from 141 interviews conducted across four purposively selected counties in New Jersey USA. These counties were selected for their "variation in racial composition, population density, and socioeconomic status" (252). And rather than focus on a particular aspect of law or inquire directly about the impacts of laws and legal mechanisms, their participants "were asked about ordinary, daily events and transactions, what they perceived as disruptions in those exchanges, and how they responded" (252-253). Ewick and Silbey empirically pursued the issues of interest to them obliquely. In conducting what they describe as a deductive and inductive analysis of the interview transcripts, whilst they "wanted to preserve the voice of our respondents" (258) they took rather a dismissive view of the importance of the construction of people's talk as they represented it in quotes from participants. Ewick and Silbey's approach is incongruous with discourse analytic research-such as that illustrated in the current analysis-which views the construction of talk as equally meaningful as the topic being talked about. They write in their appendix on research methods about their process of deciding to "clean up" (259) their participants' language: People tend to speak in a less structured, more rambling manner than they write. They say "you know" frequently, occasionally use an inappropriate word, mispronounce words […] one possibility was to reproduce literally the words as they were spoken (or heard) […] Often it is difficult and tiresome to read these unedited quotes […] Occasionally we have left in a malaprop or a grammatical error. In these cases, we believed the language revealed something relevant about the speaker. […] Ours is a story of legal consciousness, our respondents' stories were often not. Respondents told us their stories for a variety of reasons, In some cases, they did so to persuade us that they were right and someone else was wrong […] Still others believed they were just relating the facts of the episodes they were describing. (259-261) The level of detail in which they describe their decision-making process is admirable. They are, though, taking an implicitly cognitivist view of language as rooted in beliefs and agentic intentionality-respondents "believed" and "persuade[d]". 4 This is a different perspective to discursive psychology, which views talk as a form of social action worthy of study. The (common) choice to 'clean up' participants' talk creates missed analytic opportunities to, for example, examine how an account is produced persuasively. In other words, in our analysis we would not assume a priori that a participant was trying to persuade. Rather, how the account is persuasive (or otherwise) becomes a legitimate focus of attention through, and as an output of, the analysis.
In terms of their "conformity before the law, engagement with the law, and resistance against the law" (Ewick and Silbey 1998, 45, original emphasis) typology, the first conceptualisation foregrounds law as distinct from society, both grand and uninfluenceable. As Harding (2011, 20) describes "people who hold a 'before the law' legal consciousness accept that it is the legal actors who hold and exercise power". Their 'with the law' legal consciousness sees law as more of a game which isn't wholly distinct from everyday life but also largely operates in specific domains such as courtrooms. The law, here, "is understood in a very specific way; law is manifest in the adversarial nature of lawyers, judges, and courtrooms, rather than in terms of 'the state' or as being an instrument for the political regulation of the populous" (Harding 2011, 20).
In contrast, 'against the law' sees legality as "dangerous to invoke" (Ewick and Silbey 1998, 192) or to be avoided. But, as Harding (2011, 20) states and subsequently illustrates in her analysis of pluralist forms of resistance in accounts from lesbians and gay men, this form of legal consciousness "includes numerous methods of resisting legal power: resistance to both law's power and law's terrain, as well as to law's scope".
There are departures, then, between our approach and a 'classic' legal consciousness study. First, we did not approach participants' understandings of the topic obliquely or subtly. For example, in attempting to ascertain the relationship between legal gender and daily life we phrased a survey question in the form of a declarative statement, namely "my legal gender affects my everyday experiences". We found that less than half (41.6%, n = 1291) of all survey respondents 'agreed' or 'strongly agreed' that their legal gender affects their everyday experiences, although some will have disagreed because of objecting to the use of the term 'gender' rather than 'sex' in the question (see Peel and Newman 2020 for further discussion). Agreement with this statement was higher amongst those whose gender did not match their sex assigned at birth (63.6%, n = 300), compared to those whose did (37.7%, n = 991), and amongst those whose gender was situated outside of the female/male binary (65.3%, n = 126) compared to those who identified as female and male respondents (40.1%, n = 1165). As we will see in the analysis of the interview data, there was much greater nuance and texture to the discourse on this topic than the survey responses conveyed.
Second, rather than treat 'law' and 'gender' as separate entities, following 'new' legal pluralism (Moore 1986) we fuse them together via the application of a 'before gender', 'with gender', 5 and 'against gender' framework. In other words, "there are many normative orders of various descriptions that are not attached to the state but which nevertheless are 'legal'" (Harding 2011, 30), and gender is one such normative order; a normative order that incorporates cisnormativity. 6 This pluralistic view of law in this area was not only represented in participants' interview accounts but was also visible numerically in some of the responses to the survey questions. For instance, there was a low degree of appetite displayed in expunging 'gender' from 'law'-less than a third (28.1%, n = 870) of respondents reported supporting the view that "gender should be abolished as a category that the law uses (excluding equality law)", and less than a quarter (18.3%, n = 567) reported supporting this disaggregation "including in equality law". Therefore, arguably 'gender' and 'law' were largely seen as inextricably connected, suggesting gender itself is a law-like regulatory framework. In other words, we suggest that a gender-based typology is like legal phenomena, and acts symbolically to bring socio-legal analysis to gender.

Analysis: Legal Gender and Everyday Life
Participant discussion of legal gender and everyday life foregrounded 'before', 'with' and 'against' legal gender perspectives. 7 As we elucidate below before legal gender positioned gender as capturing and conveying immutable 'facts' about bodies, sex thus being situated in front of law and the legal production of categories. Before legal gender consciousness, to a much lesser extent, also manifest in ways reminiscent of 'before the law' in Ewick and Silbey's (1998) terms, as did aspects of 'against' legal gender. 'With' legal gender accounts offered a looser framing of gender, as a terrain with legitimacy but not dictating, constraining, or otherwise positively or negatively shaping daily life. In a sense 'with' legal gender was like 'with the law' in Ewick and Silbey's typology in that legal gender was commonly produced as being confined only to legal documents and forms. 'Against' legal gender 8 accounts were critical of the current gendered order represented through cisnormative and binary operations of legal sex, and offered actual or imagined approaches to 1 3 being (or becoming) situated outside the normative order. We now explore 'before', 'with' and 'against' legal gender accounts in some depth.

Before Legal Gender
There were instances where the productive and shaping nature of law was the most salient aspect of the 'before' legal gender account, in terms reminiscent of Ewick and Silbey's 'before the law'. In other words, regulation was conveyed as producing what gender 'is', or as Max put it, bringing into being "a real thing": People understand I think if it's [gender or sexuality categories] coming from a government level that actually this must be serious […] I think once you put in black and white, and it's coming down from government level, people are sort of going, "oh, that must be a real thing". (Max, gender fluid, 34, queer) The authoritative account of law was from those not aligned with a 'gender critical feminist' stance. There are a number of interesting aspects of Max's account in depicting the law's officialdom. The phrase "people understand" has a vagueness and generality about it that implies a shared and widespread perspective, and the active voicing starting with the surprise token "oh" functions to convey a change of knowledge state (Wilkinson and Kitzinger 2006) created through top-down bureaucracy ("put in black and white"). And Max's use of the metaphor "in black and white", as well as conveying formality also suggests absolutes, a lack of shades of grey and implies that alternate views to the authority of the state are incorrect. The placement of "actually" in Max's account also works to imply a flexibility or lack of seriousness about identity categories which are given gravitas and made "real" through "government level" action.
The 'before' legal gender account from a 'gender critical feminist' position was the most prevalent perspective in these data (see also Newman 2019, 2020). Gender-as constituted through sex-was official, formal and uninfluenceable. It was communicated implicitly via most respondents disagreeing with survey statements such as "identification as male/female should be removed from birth certificates". 9 Moreover, nearly half (45.4%, n = 1409) disagreed with the notion that "legal sex/gender status should not be assigned at birth but decided by individuals themselves", and also agreed/strongly agreed (46.9%, n = 1455) that "being female or male is a core social characteristic that should be specified on official documents (e.g., passports)". Chloe's account, below, provides a clear example of the notion of sex being before law in a temporal sense: Chloe: […] I think sex really needs protecting in law. Gender is this sort of amorphous evolving thing I have very little interest in or to do with, whereas, sex is a biological reality and my life has, as has everybody's life, been totally affected by this biological reality. The fact is that females, in this patriarchal culture are systematically devalued and underrepresented in all sorts of contexts. I do need particular legal protection as female. EP: It would be bad for women if the law didn't recognise sex in the way that it currently does from birth or-Chloe: Obviously, I mean, that's why the protection is there, to protect women. We are in a situation at the moment where there is a pushback. We have far right people in power, in the US and the UK. Women's rights are not something that is a high priority to them. And so that's kind of the context within which I think of all my sisters who have struggled throughout the past 100 years to get us these protections. (Chloe, cisgender female, 50, sexual orientation -prefer not to say) A strong and highly demarcated distinction between the "biological reality" of sex and the "amorphous evolving thing" that is gender, which is swiftly bracketed as of "little interest" generally or experientially, is the starting point from which Chloe builds this persuasive account. 10 She does this in a number of ways. First, there is an absence of recognition of the ways in which law and regulatory frameworks have created, perpetuated, or failed to redress "this patriarchal culture" (for instance, see Grabham 2023, for discussion of the Equal Pay Act 1970) and a conceptualisation of law as offering "particular legal protection as a female". Second, there is purpose and pace in the delivery. For example, Chloe cuts off the interviewer when, after summarising her view, EP was about to suggest an alternative wherein women's rights would still be protected without a formal legal status (such as in the Equality Act 2010, see also Renz 2023) restating the self-evidence of her position ("obviously"). Third, there are other discursive devices which together function to create a persuasive account which presents the 'before gender' perspective that biological sex sits in front of law as self-evident, namely the extreme case formulations (i.e., words or phrases hearably going to extremes, Pomerantz 1986; Edwards 2000) "everybody's life been totally affected", and "all my sisters who have struggled throughout the past 100 years". Both these phrases manage Chloe's investment in her account by positioning an alternative feminist view as inconceivable and inappropriate. Finally, her footing shifts and use of "we" ("We are in a situation…", "We have far right people…") function to position the account as believable and merely reporting "the facts" of the matter given the current wider context. Ciara's account made visible the notion of "matter" in a foundational, biological and socially significant sense. She also produces a U-turn on her thinking about the salience of legal gender from "not that relevant" to enabling people to be "correctly classified": when I was doing this project and in fact our conversation so far, what it made me realise is that legal gender is not that relevant in real life, because I see who is male and who is female. Even with people who are ambiguous or choose to present in a non-conforming way. I might bother to scrutinise, I might not. It doesn't really matter.
[…] At first, I thought, we don't really need legal gender, because, you know, what does it matter. When someone's identity is on their passport and whether it's male or female doesn't really matter. It matters that it is the person that it purports to be. […] It really does matter. It matters because there are categories and sport is the one that's close to my heart, where I don't want people to be able to just say, "I am an individual". I do need them to say-or to be classified as male or female. Correctly classified as male or female, because it makes a massive difference. (Ciara, cisgender female, 54, heterosexual) First, Ciara attributes the production of her account ("realis[ation]") that follows to "the project" which she upgrades more specifically to "in fact our conversation so far". She then dismisses the notion of "legal gender" in favour of the more fundamental and proximate ability to "see who is male and female". This foundational reality of two categories of male and female is produced as both before "law" and before gender, and as something that cannot be dislodged or disrupted. In other words, Ciara rhetorically dismisses potential counters to her position by framing additional gender categories as solely appearance based ("choose to present in a non-conforming way") and lacking significance for her in terms of her ascription of attending to them ("I might bother to scrutinise, I might not"). The term "matter" is used six times in this excerpt, twice in terms of gender not mattering but mostly to underscore the importance of "correct classification" of dimorphic biological sex. The use of active voicing ("I am an individual") functions to minimise her own stake in what's being said, the irony being that typically people do not articulate themselves in such sex/gender disavowing terms, particularly in a sporting context which is the setting she draws on in articulating the importance of sexed "categories" and binary classification (Knott-Fayle et al. 2021. 11 In noting that binary-sexed classification must prevail over individuality in the sporting context, this account foregrounds investment in the regulatory status quo, circumvents inclusivity of diverse genders, and elides acknowledgement of other frameworks for supporting equity in sport . Other frameworks, such as performance-related categorisation, are well established in para-sports; the world's third largest sporting event, the Paralympics, being the prototypical example of functional movement capability differentiating competitors, not gender (Newman and Witcomb 2022).
There were also more explicitly anti-trans references within 'before gender' accounts. For instance, Janice (cisgender female, 52, straight) said she would "remove the Gender Recognition Act" because of the "unintended consequences of creating that legal fiction". In using the phrase "legal fiction" Janice articulates that legally acquired gender differing from sex assigned at birth has no legitimacy. Tracy, for example, when asked about the consequences of decertification was clear that "the monitoring of sexism will become impossible" and: regardless of whether you change the legal language, guys still know what a female is. They will still know who to rape, regardless of whatever fictions we put over the top of them. It will just mean that it's much easier to hide male violence if it's dressed in a skirt. We now have weird things like female rapists raping people with their female penis and yet that has been categorised as a female crime. As I said, this is just turning-distorting reality to the point where the only people this is helping is men.
[…] I think what it will do is just obfuscate the fight against sexism and a fight for equality by sitting there going-right well we can pretend that women are doing an awful lot better because we will just have a load of transgender women taking top dollars and we will be sitting there going, 'bang, that's sexism solved'. We have gotyou will have seen it in sport and all sorts where you are getting transgender women taking women's places and women's scholarships and we will end up with teams of sportswomen that are actually-all of them will have penises. (Tracy,cisgender female,56,bisexual) Again, a contrast is drawn between the 'known-ness' and foundational nature of biological sex and "fictions we put over the top of them", but Tracy continues categorizing the current legal and social landscape as having produced "weird things" like crimes being miscategorized. Tracy's account emphasizes the self-evidence of gendered categories, but she also describes the violence and inequality that will occur and increase because sex/gender can be hidden ("obfuscate[d]"). A foregrounding of biological sex which denies possibility of fluidity, multiplicity or change, alongside anti-trans sentiments are visible in a number of phrases (e.g., "it's much easier to hide male violence if it's dressed in a skirt") (cf. Schilt and Westbrook 2015;Sharpe 2018), and in the three-part list construction of the displacement of cis women by trans women in a number of spheres ("women's places", "women's scholarships", women's sports "teams"). This account does cut-off at the projectable ending men "actually-" infiltrating women's sports team, self-repairing (rephrasing) into more anatomical terms although formulated as an extreme case ("all of them will have penises").

With Legal Gender
In contrast to 'before' legal gender, the 'with' legal gender accounts offered a looser framing of legal gender, existing as a legal entity but not dictating, constraining, or otherwise positively or negatively shaping daily life. Davey's brief account offers a clear illustration: Davey's account is delivered with some disfluency (i.e., self-repair "I think it-") and constructs the salience of legal gender as modest, and "just" made significant when requested. There is a lack of specificity in this account, Davey doesn't indicate who or which bodies are "ask[ing]" for his gender, which again functions to generally downplay the effect it has on his everyday life. Arguably the "with gender" account is reflective of how certification operates in certain legal spheres practically too. As Grabham (2023) highlights, birth certificates, as the definitive markers of legal sex/gender, "have not been used to help question or establish sex as a protected characteristic in equal pay claims". And some interviewees claimed that "honestly, I don't really think it [decertifying legal gender] would necessarily have any impact" (Susan, cisgender female, 31, heterosexual/straight). This lack of tangible significance of certified gender in practice was also evident in the lack of a majority view in either direction from the survey respondents to the statement "people don't need to be legally defined as female/male for law and government to counter discrimination on the basis of sex/gender". 12 The existence of gender as a legal category was constructed as limited to "only when you have to tick those boxes" (Aida, cisgender female, heterosexual/straight), or "fill[ing] out a form" (Robert, cisgender male, 62, "predominantly heterosexual") and, as such, having minimal impact on participants' day-to-day lives and experiences. Aida's account is produced in such a way as to construct both a lack of salience and a lack of contemporary relevance to gender as currently certified: Aida's response to the question is produced in a hedged way ("I don't think", "I don't know", "I guess", "probably") suggesting a tentativeness and conditionality in her response. And then the "only" illustrations of the impact she is able to provide are labelled as "really silly", "daft" and consigned to history, fanciful and potentially like a fairy-tale ("once upon a time"). Interestingly, recent Department for Transport accident statistics indicate 33,302 more male car drivers were involved in accidents in 2019 than females suggesting an evidentiary basis for reduced insurance premiums for women (Road Safety Statistics 2020). The 'unthinkability' of legal gender substantively impacting on everyday life looms large in Aida's account implicitly and explicitly (lack of "aware[ness]", reiterating her lack of thought about it). Her self-repair towards the end of her answer ("consciously-") to "I don't really" also functions to circumvent an interpretation of her account as implying that she is indeed thinking about the impact of legal gender on an unconscious level. There is a lay psychology assumption that if one is not thinking about something consciously then the unconscious/sub-conscious is focused on it. Aida's repair here annuls that assumption.
In the 'with gender' accounts we've already discussed there was an absence of an explanation or interpretation of the reasons for legal gender's lack of salience. In other accounts, however, the ease of 'with gender' was disrupted via reference to others for whom it would not be "fairly easy" (Ania, cisgender female, 32, bisexual). And reference was made to how "privilege[d]" (Thea, cisgender female, 25, straight) they were to be able to understand certification in this way. Leo, for example, alludes to a cisgender and perhaps male privilege in articulating that: "I think, for me, it doesn't [impact on everyday life] at all because I-there is no kind of dissidence 13 or there is never an issue." (Leo, cisgender male, 20, queer). Ania's account conveys both the ease for her personally in ignoring the influence of legal gender on documents, and the outdatedness of the current certification framework: There is loads of things like small things, but I guess like you know, Ms or Mrs or that kind of thing and I do notice these days that on a lot of forms there still aren't options for other-or whatever for people not to be binary, which seems ridiculous in 2019 but there you go. I think, you know, it's fairly easy for me as a kind of woman who just identifies as a woman to simply ignore that aspect of things a lot of the time. (Ania, cisgender female, 32, bisexual) First, she cuts-off at "other-" before the projectable ending "genders" before reformulating her talk in a more specific yet relaxed ("or whatever") way. Her phrase "people not to be binary" certainly puts people first, rather than the (non)gendered category though this is not the smoothest way to say non-binary. Second, she then minimises her own investment in the "ridiculousness" of this lack of recognition via the casual disclaimer "but there you go". 14 Last, she also conveys minimisation through "just" occupying a normative gender identity although she hedges this somewhat through the term "fairly" and "kind of woman" phrase. Thea, by contrast, offered a more forthright account of her cisgender privilege in finding a 'with gender' perspective personally navigable but structurally problematic: I can't think of an example of anything where it has come to-the only time I ever feel that one is forced to state a legal gender is on things like flights or certain medical things. Again, it not impacting my life is a privilege of not being trans. I have a trans friend for whom this is a constant issue, because of the way that the law in this country is so problematically structured around the requirement that you live your life as a particular gender for a certain amount of time before you can apply for legal change, which is like a whole ridiculous kind of limbo position for people to be placed in. I am sort of aware that-if you are lucky enough to feel okay with the legal gender that you have been assigned then it's a bit like again being white and not having to deal with racism. It's the privilege of visibility. (Thea,cisgender female,25,straight) 13 It is likely Leo meant to communicate 'dissonance' rather than 'dissidence' here.
14 The disclaimer here works somewhat differently from a typical disclaimer, in that it is not mitigating a potentially negative interpretation of what they are saying (e.g., "I'm not homophobic, but") (Wiggins 2017) rather it is disclaiming much investment in the problematic nature of the current certification of genders.
Thea initially confines the impact of legal gender on herself to two specific domains (air travel and medicine, narrowly and vaguely constructed as "certain medical things") which discursively contrasts with the "constant issue" it presents for her "trans friend". Her account then normalizes the experience of the current legal gender system being inherently problematic by attributing access to it as "luck" and drawing analogy with other axes of privilege and marginalization, namely white privilege. In a number of ways, then, Thea's account straddles both a 'with gender' and "against gender" position as personally she's not "impacted" but she conveys how "problematically" it is "structured" and in so doing critiques the existing regulatory framework.

Against Legal Gender
As we mentioned above, 'against' legal gender accounts were those which critiqued or disrupted the current binary edifice of legal gender through actual or imagined approaches to being (or becoming) situated outside the normative order. 'Against' legal gender accounts were the least prevalent in these data 15 and had some elements in common with 'before' legal gender accounts. For example, Juan's account conveys the experiential difficulties of the current system but poses a rhetorical question that also downplays the wider significance of legal gender: I have mentioned the annoyance that I feel at getting labelled with gendered honorifics that don't match my understanding of myself. That is just through every time you have to fill in a form where gender says male or female. And for example, I don't know if that's a legal issue but equal opportunities forms in the UK rarely have space for any other option and that's a mandatory thing. It's generally frustrating I think 'Would it make my life easier in the sense of not having to deal with those minor annoyances, to have legal recognition as a non-binary person? Hell, yeah. Would it have any serious practical implications for my life. I don't think so'. (Juan,genderqueer,gender nonconforming,41,queer) In this account Juan reiterates their "annoyance" at the available titles not being reflective of their sense of self and this being imposed ("getting labelled"). They then both minimise ("just") and extremely formulate ("every time") the prevalence of binary gender on "forms", and the compulsory nature of the existing framework ("mandatory"). Juan produces the question of having a different regulatory framework as being prompted by the endemic irritation ("generally frustrating") of the current one, and the construction of their talk in a question-andanswer format works discursively in two ways. First, this structure demonstrates through its form that these issues are problems that can be solved. Second, the actively voiced answers have very different valences-"hell yeah" in response to life being easier is unequivocal, enthusiastic and displays emotion; "I don't think so" regarding "serious practical implications", by contrast, is hedged, more tentative and indifferent. Similarly, Max (Gender fluid, 46, pansexual) was critical of "having to choose officially what my gender is" as: It jars every time I do have to do that because one, I don't see why it's relevant in most things. I don't see even why we need gender labels. I don't think they are doing us any good, really, in society. I think it's something that because it's a topic that's often on my mind is something, my legal gender status is not-it doesn't paint the picture of who I am.
[…] I think there should be either no gender labels at all or like a whole host of them, so you can choose which one you are. (Max,gender fluid,46,pansexual) Max uses an extreme case formulation ("every time") which does more than create emphasis, it conveys their own investment in their position which they go on to produce in a compelling three-part list form ("I don't see, I don't see, I don't think", Jefferson 1990). The three-part list, namely that gender is irrelevant, unnecessary, and problematic, not only serves to stress the point, it functions to construct the issues with the current form of certification as more factual and realistic (Wiggins 2017). That there are no pronoun shifts in Max's account and five instances of the first person ("I think" etc.) functions to demonstrate ownership of this view, they're very much the author of their talk. Like Juan, Max offers a solution to the problem of legal gender in either/or terms though in a less personally invested way. Though Max does depict the nuance and elaborateness of their lived experience and "legal gender status" being incongruous through the idiom "doesn't paint a picture", the generic "you" rather than them in particular is presented as the beneficiary of "gender labels" being either all or nothing.
The 'against' legal gender accounts were those in which there was discussion of other forms of legal gender being preferable to the status quo. Resistance to any form of change to the current British certification system was the view most represented in responses to survey statements such as "the British system for assigning male/female at birth should be reformed" (most, 55.8%, n = 1729, strongly disagreed/disagreed; less than a third strongly agreed/agreed, 29.2%, n = 904), and less than a third (30.2%, n = 938) agreeing that "gender should be abolished as a legal status that individuals have". Non-binary participants (both the online survey respondents and the interview participants) demonstrated the largest appetite for reform to the legal gender system, including for reform that would introduce a third, or multiple, legal gender categories outside of female and male, and for reform to a wholly self-identification model (Dietz 2018).
For the five non-binary interviewees though, it was evident that they viewed these options for reform as the very least that they would like to happen, and that their preference would be for gender to be abolished as a legal status altogether. However, they largely conveyed this as something that would be unlikely to happen in the near future, exemplified by Benny's (Genderqueer, 45, pansexual) description of it as an option for reform that remains "an impossible dream" , and also see Emerton 2023). Whilst some of those interviewed struggled to identify specific impacts that the abolition of legal gender could have, there was recognition that greater consideration would have to be given to a number of areas if this occurred, including statutes and specific situations where biological sex is made to matter by state actors. However, the consensus was that decertification would be possible, and that it would be a positive move that would give everyone more freedom and flexibility. The agentic nature of mobilising marginalised identities in order to access structural protections without the need for certification was present in Ali's account: You kind of tell people in the places that you need to know anyway. If you are, for example, reporting a homophobic crime, you are going to say 'I am a gay man and I've just been assaulted'. If you are reporting a racist crime you are going to phone the police and say 'I am black and I've just been assaulted for being black'. I don't think that it-I personally don't think that it would take away from the protection of gender, because if people are allowed to live as who they want to be then-that kind of means that there will-there should be support in place for those genders.
[…] I don't think there would be any risk to the protections against gender if we got rid of gender assignment at birth. (Ali,questioning their gender,20,bisexual) Here Ali suggests that category membership and the "protections" afforded to groups subject to discrimination are enacted by those impacted ("tell people") and as such decertification would not be detrimental. They list two examples, homophobic crime and racist crime, articulating the way that equalities protections would be sought through active voicing and direct disclosure ("I am a…"). That this form of direct disclosure is not how comings out are done in everyday interaction (they are embedded in talk as to be as unremarkable as possible, Kitzinger 2000) strengthens the account. So too does the footing shift from the generic "you are" to reported speech, which suggests self-evidence to their position as it's produced as a shared one. Some hedging does come in later though when Ali becomes more tentative about the inevitability and taken-for-grantedness of support around "those genders" self-repairing "there will-" to "there should". The specificity in the people subject to "crime" ("gay man", "black") doesn't extend to women and sexist crime. There is a largely fixed and binary categorical use of identities in this quote from Ali-a participant who is a gender-questioning bisexual. This raises an interesting question about their construction of the relationship between protected characteristics and legal categorisation; an implicit "before the law" construction in Ewick and Silbey's terms might be underpinning this account. In other words, there is the distinct legal phenomena of "racist" and "homophobic" hate crime but no equivalent categorisation around gender.
An 'against' legal gender perspective was not solely evident in those with non-normative gender or sexual identities though. Others suggested "as things become more fluid the more accepted-it will become kind of more ridiculous to have this one of two things being assigned to you" (Susan, cisgender female, 31, heterosexual/straight). Aida talked of the "liberating", "freeing", "almost mind-blowing" potential of decertification in ways that highlight the ambivalent and unpredictable relationship between legal and social change: "I Don't Think That's Something I've Ever Thought About Really… The biggest part of me thinks how liberating that [decertification] could be. I think like, one of the first things people ask you, tend to ask you, even when they know that you are pregnant, they tend to say, 'is it a boy or a girl?' and it's like 'none of your business anyway and even if it was, what difference would it make?' […] I don't think this would necessarily change. I think it would be a slow change. But that whole idea of how you are socialised based purely on that, how your sex was determined at birth. I think if that wasn't there-I think that would be amazing in some ways, because and I think it comes with lots of complexities, but I am not saying that-I think that whole idea of not having to fit into a certain way of being or not having to identify with a certain or not being identified is the assumptions, isn't it? I know, you know, those will still happen, because I guess the way that attitudes change and social change occurs, it's a very slow process. But actually, maybe that needs to be almost like a starting point for that to occur. So that you can develop a sense of yourself as a person without necessarily needing to be positioned according to your sex or your gender. It's almost mind-blowing actually when you stop and think about it like that. Actually, I think it could be really freeing. (Aida,cisgender female,42,heterosexual) Aida's account is delivered initially through compartmentalising her "thoughts" ("biggest part") on the topic of decertification and suggesting it could be transformative of social practices. She draws on the gendered commonplace of the questioning of pregnant people on foetal sex, and uses active voicing to create an immediacy and realism to this "tend[ency]". In Ewick and Silbey's (1998) terms, "before the law" legal consciousness reflects laws own story of its majesty and importance separate from, and acting upon a subservient society. Rather than a straightforwardly 'before the law' perspective, Aida's account foregrounds the complexities and uncertainties around the relationship between legal and social change. She suggests that an absence of birth registration would disrupt gender-based socialisation, attributing decertification to the production of "slow change" and a "starting point" for attitudinal and social change (Cooper et al. 2022). Aida's account foregrounded the "freeing" potential of decertification but, as we now discuss by way of conclusion, readiness to decertify was produced as highly contingent by many participants.

Conclusion: Readiness to Decertify Legal Gender and the Promise of Fine-Grained Discourse Analysis for Legal Consciousness Studies
Whether England and Wales, as a legal jurisdiction, is ready to move away from having sex and gender regulated as aspects of legal personhood is unclear. "Society" or the current political context was often provided as a reason for decertification not being possible or productive now, or in the near future. Aida, for example, as discussed in the 'against gender' accounts, was more animated than most of our participants about the potential ramifications of decertification. Later in that same excerpt, though, she upgraded her "slow change" to the much less proximate conclusion that change to the normative gendered order triggered by decertification would take "an enormously long time to happen" (Aida, cisgender female, 42, heterosexual).
Generally decertified gender was not typically presented in these interviews as feasible. And when prompted to contemplate it by our interview questioning (e.g., what the impact might be if legal gender status was no longer assigned?), the current societal context was constructed as not providing the right conditions. Leo (cis male, 20, queer), for instance, anthropomorphised society as not being "ready for it". Leo's suggestion that society is unprepared for more radical legal reform raises the question of who, or what, is articulated as posing most resistance to proposals for legal gender reform. 16 Some asserted that a generic notion of 'society' is the force holding back change. And there were global references to "backlash", and "people" (Eef, cisgender female, 34, queer), resulting in decertification not being "well received" (Susan, cisgender female, 31, heterosexual/straight). These types of assessments operate discursively as doing vagueness. Vagueness versus talking specifically and in detail do different things in talk. For instance, there is a level of specificity in Eef's depiction of the current "moment" constructed through a persuasive three-part list which sits in contrast with a vague depiction of which groups and publics would be "riled up": I think, at this moment, with the kind of political environment at the moment with Brexit and with the pull to the right and nationalism and increase in racism and all of that, perhaps, actually, it would have a counter-effect. I think it might be another thing that people can get themselves riled up about and try and enforce more gendering and more asserting of masculinity in particular.
[…] Yes, ideally we would, but if we got-if we tried to do that it might be just a step too far […] You have got to get to that point where society is more or less ready, although not everyone is ready. (Eef,cisgender female,34,queer) Eef also contrasts the "ideal" of decertification with it being "just a step too far" which is a minimising formulation of the idiom that implies but doesn't articulate which other steps might be needed to create the necessary conditions for this particular "step" (see also Cooper 2023). The lack of detail about how "society" could be "more or less ready" for decertification not only unifies different constituencies, it functions to inoculate any (potential) claim that Eef has a stake in what she is saying.
We discussed earlier, in 'before gender', how negative characterisations of trans people were evident in some accounts. Attributing blame for resistance to change to particular groups or individuals was largely absent in discussion of why decertification couldn't be a viable alternative now, or in the near future. This is significant because another function of the prevalence of vagueness is avoiding any potential evaluation as being prejudiced. There were just two instances where groups and individuals were portrayed as problematic. Billy (Non-binary, 24, bisexual) referred to "idiots" and offered a very specific illustration of "mockery" of broadening of gender identities: "I can see [Name of a journalist] sitting there and saying, I identify as an apache helicopter, therefore I am going to be known as Helicopter [First Name]". And Matt, implicated both "older" and "younger generations" as resistant to change which has a symmetry and balance to it: There would be a lot of-I don't really know what to say, a lot of pearl clutching and wringing of hands from probably older generations and younger generations that don't share those views, but, like I said earlier in the interview it's-in ten years' time, it may well be a fact. That may be the way the world is in ten years. That as a child is born, they are no longer assigned a gender on the birth certificate. (Matt,cisgender male,38,straight) There is a sense, here, of progressivity, decertification happening "in ten years" time and the "wringing of hands" from two rather large groups Matt is not part of. This all functions to distance him personally from any objection to "maybe" this inevitability. Plus invoking these objecting groups is done in a hedged way ("probably"). The potential inevitability of decertification is made more convincing in this account through the two objections being formulated as anxious and apprehensive ("wringing of hands") rather than violent and energetic, and specific to women-perhaps older, middle class women-viewing such change as morally wrong ("pearl clutching"). Therefore, despite the very few references to "idiots" or "pearl clutch[ers]" overall, the lack of readiness for decertification was produced through vagueness in interview talk and anthropomorphising society.
Taken together, then, in this article we have focused on the ways in which lay participants engaged with the question of how, and in what ways, a future without legal gender could be (un)contemplatable. We did this by adopting a pluralistic version of legal consciousness to organise participants' accounts into 'before', 'with' and 'against' legal gender. This typology enabled us, first, to consider in some depth accounts which situated gender (constructed as dimorphic pre-social biological sex) as rightly governing the legal production of categories. Second, a living 'with' but not being unduly influenced by sex/gender set of formulations was foregrounded. Third, cisnormative and problematic constructions of the normative gendered order were analysed in 'against gender'.
The before/with/against legal gender classification, in essence, makes three distinct stances on the topic of decertification visible-although we recognise the typology is not monolithic and there is flux and fluidity in accounts of law which are invariably elided through discourse being ordered into themes. 'Before' legal gender normative consciousness is predominantly an anti-decertification account, decertification would be risky or potentially dangerous for natal females. 'With' legal consciousness is neither for or against decertification necessarily but creates space where decertification could occur though its impacts would be limited and legal gender per se is constructed as unimportant. 'Against' legal consciousness is pro-decertification as not to do so is harmful for already marginalised groups.
Central to the production of these forms of consciousness was a discursive psychological stance; a stance which as we discussed earlier is anti-cognitivist. Discursive psychology views spoken or textual utterances as situated constructions of the world (of events or actions) that act as vehicles for social action (managing accountability, attributing blame and intentionality, creating facticity etc.) (Edwards and Potter 1992;Wiggins 2017). Though latterly, discursive psychology is typically applied to naturalistic data, there is a long tradition of taking a discursive approach to interview talk. Taking a discursive approach in the context of a typology of forms of legal consciousness has enabled a move away from 'belief' (whether conscious or unconscious) to a focus on how these forms of legal consciousness are produced. This is important when examining talk about the potential for, resistance to, or indeed ambivalence towards legal reforms such as decertifying legal gender status because the construction of the stance is as illuminating as the de facto position.
As we noted at the start of this article, talk about how gender could be regulated differently was largely generated by the questions we asked rather than participants' spontaneously being able to imagine a different world, a world perhaps beyond gender (Harding 2010). This is understandable given the conservative socio-political climate in the UK (Parsons 2021). In offering perhaps a more forensic level of analysis than is typical within socio-legal empirical work drawing on legal consciousness studies, we offer an illustration of a different approach, and an invitation to take seriously the construction of talk about sociolegal concerns. 'Against' legal consciousness stances (e.g., Harding 2011) are associated with marginalised groups both arguing back against normative orders, and heralding things differently. There were hints in 'against gender' of decertification potentially contributing to undoing gendered normativities with attendant possible benefits to those marginalised (see Cooper and Emerton 2020). And as Cowan (2021) notes "the uncertainty over the future of legal gender, as well as the damage that the toxicity of the current debate is causing, is hugely detrimental to all trans and non-binary people's well being" (222). We agree that the cisgenderism and transphobia that is manifest discursively has material, detrimental consequences for gender diverse people, and that the potentialities of 'against' stances are stymied in the present context. Our wider theoretical and methodological point, though, is that talk is a form of social action. And therefore, as such talk should be more closely considered-in terms of its construction, form and emphasis-by feminist socio-legal scholars interested in understanding divergent perspectives on future legal reform.