Decertification and prefigurative law

Within contemporary law and society scholarship, experimental law writing is less evident than might be expected. The recent explosion of critical judgment writing has not been matched by a comparable explosion of critical and reflexive legislation writing, although some current examples exist, such as the Australian feminist legislation project (Batagol et al. Reference Batagol, Seear, Askola and Walvisch2024).Footnote ¹⁰ Proposed legal reforms and model laws occur, of course, across a wide range of fields, but they tend to remain within the realm of the feasible, offering technical revisions and updating of existing law or achievable progressive reform. This article, in contrast, focuses on more radical legal proposals that seek to revise fundamental aspects of how society is organized, reaching beyond the limits of what is currently considered achievable (see also Kullmann and Iossa Reference Kullmann, Iossa, Blackham and Cooney2024). However, unlike some creative law writing (for example, Goodrich and Zartaloudis Reference Goodrich and Zartaloudis2021), discussion focuses on workable changes and “viable” law as a legally intelligible response to current political concerns (Wright Reference Wright2007).Footnote ¹¹

Decertification is a feasible legal proposition to withdraw sex and gender from legal personhood so that the state no longer confirms or stands behind the sex and gender that people are presumed to have (or be).Footnote ¹² Decertification aligns with measures to “deregister” sex and gender, but it is more expansive in its outlook. In addition to taking sex off birth certificates, decertification would require all laws predicated on a binary regime of ascribed sex and gender to change. People could identify their sex and gender freely and without penalty, and governmental and civil society organizations would not be able to treat people differently based on legally assigned categories.Footnote ¹³ In short, sex and gender status would be more akin to sexual orientation and race within the British equality landscape—terms that are legally deployed but do not give rise to assigned or registered statuses.

Taking up decertification as a legal design, ambition, and research tool was the challenge that a group of colleagues and myself undertook in a four-year project funded by the United Kingdom’s Economic and Social Research Council between 2018 to 2022.Footnote ¹⁴ We described our method as one of prefigurative law reform (Cooper Reference Cooper2022a; Cooper and Renz Reference Cooper and Renz2023)—that is, we sought to inflect and develop prefigurative thinking by creating a legal object in the form of a legislative proposal. Prefiguration is typically approached as a grassroots sociopolitical practice in which the values and structures of the sought-after better society are manifested in the present—communal living, participatory democracy, social care, ecological responsibility, for example.Footnote ¹⁵ Prefiguration treats such values and structures as if they are already realizable, while suspecting that they are probably not, trialing change as an expressive, ethical, and strategic undertaking. As such, prefiguration inverts the typical means-ends relationship by having the ends act as the means. More generally, it stages a political refusal to wait for the changes sought and a refusal to leave change in the control of powerful bodies. Prefiguration involves acting as if the social organization of life was already otherwise.

In our research, decertification constituted prefigurative law in several respects. While not an advocacy project, the research worked from the premise that decertification was worth serious attention. Rather than shunt decertification to a later date, the research treated decertification as if it was already on the law reform table as a sensible, realizable option. At the same time, decertification functioned, methodologically, in two other ways. One was as an intervention in the current conflict between sex-realists and gender pluralists—an intervention that, as a reflexive research project, we also tracked. Second, decertification functioned as a research tool that brought current hopes and fears for legal sex and gender categories into relief (Peel and Newman Reference Peel and Newman2020, Reference Peel and Newman2023; Newman and Peel Reference Newman and Peel2022), offered an interpretive frame to make sense of some policy makers’ practices, and stimulated reflection on diverse gender futures, including those of abolition and diversification. While these methodological uses were not all explicitly prefigurative, they were made possible through the development of a prefigurative legislative framework. Fundamentally, we might think of prefigurative law reform as inverting the conventional funnel-like structure of socio-legal enquiry in which an expansive starting point narrows toward realizable reform recommendations as empirical data gathering gives rise to legislative proposals. Instead, by starting with a legislative proposal, a seemingly narrow reform—to abolish legal sex and gender status—produced an expansive and far-reaching canopy of issues, challenges, and thoughtways, as this article explores. Here, political “ends” become means—although, as I discuss, critics saw decertification (our “means”) as constituting, for them, undesired “ends.”

To explore decertification, we conducted over two hundred semi-structured interviews with policy makers, trade union officials, NGOs, lawyers, academics, and wider publics on the strengths, weaknesses, challenges, and viability of abolishing sex and gender as legal statuses and on institutional practices that treated sex and gender as already somewhat deformalized (see Cooper et al. Reference Cooper, Emerton, Grabham, Newman, Peel, Renz and Smith2022). We also undertook a survey in 2018, addressing similar issues, which generated over three thousand responses, and ran a series of stakeholder workshops and seminars to critically assess the principles and prototypes of decertification law reform that were emerging.Footnote ¹⁶ This article draws on a subset of approximately sixty interviews with stakeholders, along with a sample of critical social media responses to the research. Importantly, for the discussion that follows, interviewee sampling targeted staff in organizations spearheading new gender-pluralist approaches alongside organizations (and members) opposed to these developments on feminist grounds. The research did not interview self-declared conservative opponents of decertification and gender self-identification. In part, this was due to the British context of feminist leadership in countering gender pluralism, and, in part, because the research focused on gender and sex perspectives presented and validated in social justice terms.

The proposition to deformalize gender and sex categories has emerged from different quarters in response to rapid legislative and social change (see, for example, Holzer Reference Holzer2020; Katri Reference Katri2023; Smith et al. Reference Smith, Cannoot, Repentigny, Holzer, Leung, Mhuirthile, Vipond and Varman2023). Thus, decertification was not a whimsical suggestion but, rather, one anchored in evolving socio-legal conditions. As a possibly good idea for Britain in the late 2010s, decertification was a situated response to a national context in which legislation was becoming increasingly gender neutral in both substance and language (see Grabham Reference Grabham2020), statutory procedures for sex/gender transitioning existed, nonbinary identifications were growing more popular and visible, and practices among many employers, public bodies, and civic organizations to recognize self-identification and, in some cases, gender identities other than women and men were multiplying. At the same time, decertification’s proposition took place in conditions of persistent gender inequality, exploitation, stigmatization, and violence, and sex and gender categories continued to be used by policy makers, NGOs, and others for ameliorative purposes. In such complex and equivocal conditions, decertification offered a controversial counterpoint to the more familiar move, operating transnationally, of incorporation within an existing legal gender structure, including for nonbinary people (see, for example, see Holzer Reference Holzer2018; Clarke Reference Clarke2019; Gascoigne Reference Gascoigne2024). Yet it was this accommodationist strategy that gave rise to decertification as a research proposition. Instead of incorporating nonconforming subjectivities within the prevailing gender and sex framework, we asked, would it make more progressive sense to dismantle this structure?

Three broad arguments solidified in favor of decertification: freedom from restraint, undermining hierarchy, and weakening gender’s acquisition. First, decertification would help to liberate people from gender’s constraining norms. While this would free everyone, more immediately it would help those faced with the unhappy alternative of living within the categories assigned at birth or undergoing a pathologizing process of formal transitioning between female and male (see also Renz Reference Renz2024). Decertification was not seen as unequivocally beneficial for trans people, however, and some interviewees were hesitant about abolishing legal status given the social vulnerability of those whose gender was repeatedly challenged. Still, many liked the prospect of splitting social categories from legal ones:

In contrast to creating new legal categories, such as nonbinary, decertification side-steps the temptation to reformalize difference and so render it static and knowable:

Decertification does not ignore social context and structures but understands them as shaping life in heterogeneous ways. This requires that attention be paid to individual experience rather than imposing a category template. While introducing new categories (such as agender or nonbinary) prompts new forms of knowledge, this remains bound up with assigning and determining group properties (Clarke Reference Clarke2015; Katyal Reference Katyal2017). Decertification prompts other modes of knowing, shaped also by the growing awareness that many people’s bodies do not align with category expectations (including new categories). One interviewee commented, “I think that we need … [to] be more specific and be like: do you have a cervix? Come and get it checked” (Interviewee no. 3, staff member, LGBTQIA+ organization).

The second argument for decertification concerns its contribution to loosening and undermining gender hierarchy. Currently, from birth, everyone is legally placed within categories of female and male—categories with unequal social status. While this inequality is, for the most part, not legally mandated, category placement is formal and highly controlled.Footnote ¹⁸ Thus, the state legally compels people to experience life through gendered statuses that are differentiated and socially unequal. Decertification abolishes this formal status allocation. While some people, who we interviewed, associated decertification with the evolution of more equal sex and gender categories, others saw it as part of a broader project of de-producing (or abolishing) gender (and its sexed categories) altogether since the patriarchal history and uses of such categories rendered them irreparably oppressive. This diversity of political projects is important. Decertification can be part of an abolitionist agenda to eliminate gender from the organizing principles of society, but it does not have to be; instead, it may be oriented to gender’s pluralization, although how gender’s meaning evolves in conditions of social informality remains uncertain.Footnote ¹⁹

Yet whether interviewees longed for parity, or the eventual eradication of gender and sex categories more generally, they considered decertification to be a supplementary or partial move since legal status categories were not deemed paramount in maintaining gender inequality. At most, optimists hoped, decertification would weaken the legitimacy of gender-based distinctions, outlawing some while unsettling others (see also Holzer Reference Holzer2019), in conditions where weakening formal distinctions would undermine the economic, cultural, and social hierarchies to which they attached. This, in turn, prompted a third argument in favor of decertification: that reducing formal distinctions and their everyday usage would undermine individual gender acquisition. One aspect of this concerned the symbolic effect of decertification’s introduction, as a legislative statement that distinctions of sexed embodiment would no longer be qualities to protect or legally brand. A related aspect concerned decertification’s impact on the heteronormativity of formalized sex-based distinctions as binary, complementary, and important to mark and protect (see also Decoster and Cannoot Reference Decoster and Cannoot2020).Footnote ²⁰ Heterosexuality seems to lose its special status if male and female are no longer formally differentiated, prompting questions about the effect this might have on the acquisition of sexual identity and the work done by sexual identity in gender acquisition (something that feminism and gay politics have long addressed). More generally, abandoning legally assigned classificatory statuses carried the anticipatory desire that this would undermine others’ confidence (and legal ability) to use sex and gender categories explicitly and knowingly: “What we know is that you had a child born with a penis and testicles or with a vagina, and that is all we know. Will it allow a bit more reflection on, how do I raise this child?” (Interviewee no. 2). While this interviewee thought that “the vast majority of people will still go down the usual routes” of gendering, decertification might have more impact on institutional conduct. With sex and gender de-formalized, it becomes harder—legally and socially—for schools, agencies, and employers to justify their routine use and relevance.

But it is important not to overstate this. In legal terms, decertification could lead sex and gender to become categories that are no longer certified—either at birth or through transitioning—but are simply determined as “legal facts” when necessary.Footnote ²¹ While this determination could center on self-identification, it could also rely on less flexible modes of knowing sex and gender. In addition, the persistence of other social inequalities such as race and socioeconomic class, which do not relate directly to legally inscribed statuses in Britain, sheds doubt on the impact of decertification in undoing gender inequality. Decertification may have limited effects; it may also have unintended ones, exacerbating rather than diminishing inequality. But, given this uncertainty, in what sense is decertification utopian? And what kind of utopianism does it espouse? I want to consider these questions by considering two kinds of utopian impulse: pragmatic and radical.Footnote ²²

Decertification as pragmatic and radical utopianism

The development of utopian pragmatism in recent years counters the equation of utopianism with impossible perfection. Instead, utopias appear as material manifestations of a better (but not ideal) world that are plausible and achievable rather than fantasies or simulations, and that are evolving and plural rather than static and monolithic. Decertification instantiates pragmatic utopianism in several respects. Although not introduced in any jurisdiction to date, it proffers a change that is imaginable and possible. Partial rather than comprehensive and totalizing, decertification offers a “waystation” on route to gender’s radical transformation whose realization can be designed and plotted (Wright Reference Wright2007; see also Thaler Reference Thaler2018, Reference Thaler2022; Hetland Reference Hetland2024). To the extent that decertification is anchored in present social and legal conditions rather than of an imagined future society, it is a feasible reform that also provides an architecture for how sex and gender categories might operate once legal status is abolished. As such, it gives rise to familiar policy dilemmas and choices—for instance, should religious communities be granted any autonomy to determine sex and gender for their own purposes? Does sex have any regulatory life apart from gender? Resolving these questions depends on political context, but they are questions whose resolution is amenable to established techniques of legal engineering.

Approaching decertification as a pragmatic utopian project, law itself also receives a makeover as a governance technology that can usher in change, provide plumbing for a better society, and establish itself as the authorized mode through which plausible, viable representations of the good society are made knowable. In this pragmatic guise, decertification sits alongside other initiatives intent on redesigning some aspect of society to realize improvement, what Dave Elder-Vass (Reference Elder-Vass2022, 541) describes as “useful concrete utopias,” “not visions of whole alternative ready-made societies, but rather partial models that can be built in practice as elements of the larger social world—so that building a better future may involve fitting together a number of concrete utopias.” A similar sense of modest, partial, and feasible development surfaces in recent work that conjoins utopia with the everyday, real, minor, practical, and lived (Winter Reference Winter2006; Wright Reference Wright2010; Cooper Reference Cooper2014; Albritton and Westra Reference Albritton, Westra, Westra, Albritton and Jeong2017; Thaler Reference Thaler2019).

Glimpses of a pragmatic utopianism can be observed in the “soft decertification” undertaken by public bodies, trade unions, NGOs, and others. In interviews conducted between 2018 and 2024, participants described how their policy practice strove to recognize emerging gender identities and to avoid restrictive boundaries or assumptions about who fell within a specific category. Examples of policy practice included deliberately hailing nonbinary people in job advertisements, managing recreation center changing rooms without directing users to female or male spaces based on how they looked, and inclusive provision for women returning to work, escaping male violence, and more that welcomed trans women and nonbinary people (Cooper Reference Cooper2022a, Reference Cooper2022b; Cooper et al. Reference Cooper, Emerton, Grabham, Newman, Peel, Renz and Smith2022; Renz Reference Renz2023). But while decertification emerged as a pragmatic utopian object in its legislative design and in pockets of identified policy practice, decertification also appeared utopian in a quite different way. In contrast to a pragmatic utopianism—invested in the ability to manifest sought-after change—this more radical version embraced utopianism’s no place, while attending to utopianism’s critical, transformative, and destabilizing aspects.

Within utopian studies, a well-established value of utopianism is its estrangement function. By depicting imagined change and the good society, problematic aspects of current society—taken for granted (and so scarcely noticed)—come into relief. No longer obscured by their necessary, inevitable, or common-sense status, how things currently are becomes subject to a “process of neutralization” that is identified by utopian scholars as both critical and creative (Jameson Reference Jameson1977, 9). Decertification’s capacity to have this catalytic effect proved evident in the interviews. Repeatedly, participants would appear puzzled by the question: do we need to have a legal sex or gender? Initially, the question did not make sense because, for many people with whom we spoke, sex and gender just were—social facts that law unremarkably echoed. But once the question was posed and explored, the contingency of sex and gender classifications and status came to the fore. For many interviewees, this was an opportunity to think about life without a legal status so normalized that it had received little prior attention. Suddenly imagining it stripped away, the changes that abolition invoked came to the fore.

Taking up the invitation to think forward in ways that foregrounded plurality, informality, and contingency, without the birth registration “promise” of sex/gender unity (see also Garland and Travis Reference Garland and Travis2025), decertification signaled a more egalitarian, less circumscribed future. A staffer in one LGBTQIA+ organization drew on the example of putting “a person on the moon” to argue for the need to “be creative and think big … I think, [decertification] is thinking big” (Interviewee no. 4). Decertification invoked structural change to the formal architecture of gender, but it also signaled a future of new kinds of people and relations. The capacity (and need) for people to change is an important dimension of utopian thinking, where new ways of living are dynamically and constitutively linked to new ways of being (see also Levitas Reference Levitas2013). But what does this mean for gender? What kinds of gendered subjectivities are promoted and sought by the utopian promise of decertification? One staffer in an LGBTQIA+ organization commented:

This interviewee’s words gesture to utopian ambitions for gender as well as some of the complexity and tensions carried by it. As mentioned earlier, decertification is not necessarily about gender’s abolition, and it does not require it, but it does prompt consideration (at least) of gender’s social as well as legal dismantling, while questioning what is being dismantled when gender is dismantled and what would emerge in its place. In this interview extract, the speaker moves between a de-institutionalized account of gender in which gender is no longer aligned with stratified power but, instead, names a natural plurality of expression—“as many genders as there are people on this earth”—to gender as something imposed on natural forms of difference, where abolitionist projects risk erasing feminine specificity while leaving the masculine in place, to recognizing that the inhabiting and expression of differences, currently identified as gendered ones, may be framed in other ways. This resonates with Marquis Bey’s (Reference Bey2022, 40) discussion of gender non-normativity: “[W]hat gender might be and become were it not for Gender, what we emerge into when we are not nonconsensually given an ontology of gender.”

Here, two seams in gender’s transformative reimagining bump against each other. One focuses on identifying and sustaining valued qualities, currently seen in gendered terms (care or empathy, for example), while detaching these qualities from an objected-to gender. The other focuses on freeing gender from its institutionalized asymmetry so that it can function as a language or grammar for experiencing and expressing personal variation. In the first, gender largely retains its current meanings and, as a material accomplishment and regime, is abolished—or banished—so the good life, with good values, can be lived free from it. In the second, gender acquires new meanings—for the societal planes on which it operates (self-expression and respectful relationships rather than structural power) and for what doing gender does—and so is retained. To the extent that these two seams identify the future post-decertification, they remain both highly speculative and perhaps not incompatible since the gender that is retained in the second seam is not the same gender as that abolished in the first. However, loosely enacted in British political discourse between 2018 and 2025, their contrasting conceptual frames proved explosive.

Developing decertification as a legal proposition also triggered questions and reflections about aspects of societal organization other than gender. In large part, these were prompted by critics, worried about decertification’s effects—for instance, that loosening or eliminating formal category boundaries would increase trans women’s presence in women’s prisons and sports in ways that would be unfair and physically harmful to other women. I will shortly turn to these concerns, but I raise them briefly here because they worked, unintentionally, as prompts for radical utopian thinking. Critics’ concerns could be (and were) addressed within the narrow frameworks in which they were posited—that trans women do not bring violence into women’s prisons and that they do not have a generalized sporting advantage. However, as concerns, they also provided conduits to a transformative utopianism concerned with other institutional structures. These structures can be eclipsed by the defensive logic that comes into play in countering anti-trans arguments. However, expressed concerns about violence in prisons or unfairness in sports can also provide a springboard into webs of normative injustice and the racialized, socioeconomic, and colonial genealogies that give rise to and sustain them (for further discussion, see Copson Reference Copson2016; Shin Reference Shin2017; Akbar Reference Akbar2018; Karkazis and Jordan-Young Reference Karkazis and Jordan-Young2018; Kerr and Obel Reference Kerr and Obel2018; Lamble Reference Lamble2025).

We can approach these broader webs through a two-pronged act of utopian “repair” (Sheikh Reference Sheikh2021): attending to the presence of harm and injustice (in terms other than those presented by critics), while also countering the institutional assumptions that discussion of harm and injustice exposes. Thus, for prisons, it could mean critically attending to them as unsafe, violent spaces (instead of treating trans women prisoners as carriers of danger) while reaching towards decarceral initiatives, including through prison abolition prompts.Footnote ²³ For sports, radical utopianism might sidestep the pragmatic response that seeks to address sex-based competitive advantage within its own terms, juggling inclusion and fairness as competing values that the “problem” of intersex and trans women’s participation in women’s sports brings to the surface. Instead, it could address how unfair competitive advantage aligns with exclusion in relation to training, equipment, facilities, body shape, sporting opportunities, and so on, and then re-evaluate the place of competition in sports, particularly given utopian values of cooperation, equality, caring, and play.

Pragmatic and radical utopian approaches are often placed in opposition to one another, compelling speculative law reform proposals to choose: viable reform or far-reaching imaginative exercise “divorced from ‘real’ conditions, in the world of ‘dreaming’, and [] thus prone to failure” (Gabay Reference Gabay2022, 287).Footnote ²⁴ Yet pragmatic and radical utopianism do not necessarily come in separate packages. Writing about Barack Obama’s and Bernie Sanders’s electoral campaigns in 2008 and 2016, respectively, Gabriel Hetland (Reference Hetland2024) explores different ways in which utopianism and instrumentalism combine (see also Byrne Reference Byrne2019). Speculative law reform proposals may pivot between achievable-seeming and more radical options, but in developing legislative principles for decertification, we repeatedly encountered the external demand that the good coherent proposal choose one path or the other. This was something we resisted doing. Our aim was to consider how they could combine and how we might move between them given a domestic political context in which decertification law seemed increasingly unrealizable (Cooper Reference Cooper2023), even as we also did not want to let go of practical feasibility by creating a fantastical imaginary law. Instead, we sought to design something that looked like a viable legal proposal, while refusing to be deterred either by charges of failure or by the charge that decertification was a fictitious law. In the discussion that follows, I consider how decertification’s failings and unreality converged and, also, diverged in relation to the utopian no place.

Failure and the not real: the no place of decertification

Decertification encountered sustained criticism from many British feminists for being undesirable, unachievable, and unreal. This criticism was, to some extent, deliberately invited within the research process through our online survey, interviews, workshops, and legislative drafting events. Criticism also came, though it was less solicited, in national newspaper opinion columns and articles, on Twitter, in blogs, and on Mumsnet, a social media platform for parents. Mumsnet was initially established as a space for parents to discuss issues relating to child raising; however, it became widely associated, during this period, with gender-critical politics (Pedersen Reference Pedersen2020). Between 2018 and 2022, several hundred comments appeared on various threads discussing our research on decertification (almost entirely critical). Benefiting from anonymity, platform users’ lack of co-presence with the researchers, and a perceived community of shared values, criticism of the research (and the researchers) was generally expressed much more sharply here than in the interviews.

Depictions of decertification as fictive had two key aspects: that it could not be real law because it was not made by official lawmaking bodies but by academics without authority and capacity; and that the developing proposal had a delusional “airy-fairy land” understanding of gender and sex: “I think they’ve hugely overestimated what they can accomplish and the influence they have to change the law… When it comes to policy, ‘queering’ isn’t what you want to be doing.” (Mumsnet talk board);Footnote ²⁵ “Most of this is theoretical, without much grounding in reality” (Mumsnet talk board); “Sex is observed at birth. Gender isn’t formally assigned at any point. I don’t know how academics can get so mixed up about the difference” (Mumsnet talk board).

Criticisms of decertification as being out of touch with reality combined with claims of failure. Decertification’s primary failure was in being the wrong strategy; wrong because it did not center women’s sex-based needs. More than this, decertification would make it harder for women’s needs to be met by dismantling a crucial part of the reparative machinery in conditions where inequality between women and men endured. A staff member from a feminist organization commented: “In a world … where women are highly concerned about the discrimination they face and the harassment … how do you ensure that police forces who already don’t take crimes against women seriously are recording these crimes, if there is no longer legal definition” (Interviewee no. 5). Critics argued that decertification would undermine tailored services and benefits for women, along with sex-specific data, since membership in the targeted group would become much harder to track. A women’s rights expert commented:

For these research participants, sex category membership was not something that people could meaningfully choose. It was determined by biology and gave rise to injustices perpetrated by others. Self-identification in conditions of decertification, where there was no final authoritative determination of a person’s sex, would not aid gender equality. It would simply make things worse for women.

In the interviews, critics argued for the need to retain binary legal categories using standardized definitions of women and men based on sex characteristics.Footnote ²⁶ While some framed this approach as generally preferable, others (including some sympathetic to the ethos of decertification) suggested that the timing—post-Brexit Britain and a (then) right-wing Conservative government—meant that it was not a suitable moment for radical reform (see also Emerton Reference Emerton2023): “We are not in safe times … we’ve seen a global rise in fascism, and we are about to enter a really, I think, a really bad economic time, and we can see from history, that when you have the economic crashes, conservative values become more mainstream. And so, it’s just not the right time” (Interviewee no. 3).Footnote ²⁷ A social care expert commented similarly: “I think maybe in twenty years’ time, but not now. … I can’t give you a valid reason why. Maybe it’s just because I am old-fashioned. It just doesn’t feel that that would be helpful” (Interviewee no. 7).

As a speculative legal proposal, decertification was charged with failing on multiple grounds. It weakened and blurred category membership, mistakenly assumed that the removal of legal status would help those subordinated by sex/gender, underestimated (naively or calculatedly) the opportunism, invasiveness, violence, and threat posed by male-bodied people, and ignored the sexed materiality of women’s bodies. As project researchers, we responded to these criticisms in different ways. We explained how gender-specific provision could work with self-identification (and did not require legal sex status), drew attention to the contested meaning of sex—as a concept without an essential truth, foregrounded the place of gender in shaping how sex was understood, complexified the materiality of sex and gender as something more than human bodies, untangled the assumption that decertification would necessarily prohibit law and state from using gender and sex categories, and used the concerns that critics raised to identify more radical agendas, as with sports and incarceration.Footnote ²⁸ In conducting a research project like this one, the drive to refute charges of failure is strong and, when done convincingly, accorded wider value. Yet what is also valuable is to attend to the processes and practices that failure attaches to, and aligns with, including those that it brings into being (see also Lisle Reference Lisle2018). In other words, rather than treat the utopian as a cause of failure—that the proposal was too radical, naive, and untimely to succeed—we might think about how charges of failure bring the utopian, as accusation and ambition, into play.

Utopian failure invokes the imagined future that would have been but for the non-accomplishment, over-accomplishment, or unsustainability of the project (see also Wright Reference Wright2007). In this way, failure’s presence presents utopia as something pursued, made, or happening, even as failure is also utopia falling short (see Renz Reference Renz2025). If we understand utopia as the expressed longing and desire for a better society that is practically or virtually expressed in ways that cannot bring it into being (at least not fully), failure becomes a constitutive part of what utopia is and means (see also Garforth Reference Garforth2025). Here, failure and the not real combine for the not real captures the missing element(s) needed for successful enactment—for instance, that a law reform proposal passes through parliament or, at least, is developed by a law commission within a recognized process not by academics conducting experimental research. Failure and the not real also converge in the inability to know and express the utopian object—here, what decertification means for the future. Literary scholar Fredric Jameson (Reference Jameson2004, Reference Jameson2005) influentially suggested that what utopia accomplishes is the exposure of its own limits since we cannot think outside of the epistemologies and ideologies of our own contexts. Decertification is a speculation that cannot be pinned down or formulated as a real, knowable, mappable future. As such, for critics, it fails to be convincing; how can law reform be compelling when its outcomes remain unknown—vague speculations at best?

But failure and the not real also, importantly, diverge. Failure invokes an endpoint from which a retrospective assessment is made—namely, that something fell short, broke down, or lacked power to flourish and endure: the speculative law proposal that was never adopted by government; that was unable to respond effectively to the problems it confronted, not least by articulating—in the view of critics—the wrong problem.Footnote ²⁹ Paradoxically, failure suggests something existed. In falling short, breaking down, not flourishing, something was put in motion—a something in the process of being formed. Failure suggests that decertification was on its way; it just lacked the right resources, timeliness, and expertise. Yet many of the objections to decertification were not that it fell short of its ambitions (or was the wrong ambition) but, rather, that it was not real—that it was non-existent as well as “bad” law. As a speculative law reform proposal, developed by academic researchers, decertification sat outside of proper lawmaking processes. This was a law that was not about to come into force, that would not assume the proper name of law since it was not being pursued as law should be pursued. Like a child pouring pretend tea from a play cup, however hard actors tried, their actions would remain on the wrong ontological plane.

Charges of fictiveness and failure seem damning. What value is there in developing a law reform proposal that has no foreseeable place? Yet the no place, importantly, is a space of promise—of ambition and possibility—within utopian studies. In Blochian terms, this is where “concrete utopias” that “anticipat[e] and effect[] the future” reside—that which is “coming into being on the horizon of the real” (Levitas Reference Levitas1990, 15, 17; see also McManus Reference Mcmanus2003). Decertification is an idea at the edge of what is thinkable and viable in Britain today and in other jurisdictions also. It is also a gesture toward changes in gender’s social and legal regulation that are important because such changes cannot yet be thought. Here, the not real identifies what cannot be realized in the sense of being understood as well as what cannot yet be made real. The not real also supports the utopian in a more practical fashion. When spaces and actions are perceived as fictive, the stakes are often lower and institutional actions with revisions appear less threatening (Cooper Reference Cooper2019, ch. 6). Here, speculative law offers an imaginary canvass for redrafting an institutional framework, such as legal sex and gender, with more flexibility, reversibility, and less risk than if it was attempted within the domain of official public law reform.Footnote ³⁰

Failure too can support utopian projects. Many have written about the learning and new starts that failure promotes; how it reveals, clarifies, guides, and boosts action (for further discussion, see Abensour Reference Abensour2008; Gabay Reference Gabay2022; Mrovlje Reference Mrovlje2025a, Reference Mrovlje2025b; compare Lisle Reference Lisle2018; Coward and Lisle Reference Coward and Lisle2025). Mathias Thaler (Reference Thaler2023) evocatively describes how failure can be deliberately built into the infrastructures of fictional and practically manifested utopias as “predetermined fault lines” that sacrifice parts to protect and save the whole, like crumple zones in cars or fuse switches in electrical circuits. In the case of decertification, we might see its failure to be legally accomplished as working to secure decertification’s development through other means, such as de facto policy practice. Alternatively, the apparent inadequacies of decertification law might give added impetus to other reforms, such as legal recognition for diverse gender categories based on self-assumed membership.Footnote ³¹ Decertification’s failure may also be temporary. The success of counter-projects giving rise to new regressive policies and laws that embed binary sex and gender statuses as immutable may prove short lived; legal sex and gender status may once again become hollowed out as the backlash subsides. Decertification’s failure, of course, can have many other consequences or very few. How to narrate this story and across what timescale is a task for future histories. But the history to be told also depends on whether and how the utopian impulse remains in play.

Keeping utopianism in play

Relating utopia to play is controversial. Critics of utopian thinking have often hailed utopia as play’s antithesis—rigid, dull, authoritarian, and overly planned (see, for example, Abbott Reference Abbott2004). At other times, play’s associations with lightheartedness and frivolity seem to trivialize utopian ambitions. But play does not have to be trivial, and the pluralistic, agonistic, flexible utopianism of contemporary studies is some distance from play’s antithesis. Tying utopia to play brings the creative, curious, pleasurable, and protean qualities of utopianism to the fore.Footnote ³² The dizziness this can evoke resonates with Roger Caillois’s (Reference Caillois2001) description of ilinx as a form of disorienting play. In Caillois’s example, a person rotates quickly and becomes giddy. In the case of a speculative law reform proposal, like decertification, disorientation comes from denaturalizing formal sex and gender categories, treating them as contingent statuses that can be dismantled rather than uncontentious immutable realities. Decertification also foregrounds another of Caillois’s play types: mimicry, where an activity, role, or persona is simulated.Footnote ³³ In the case of experimental law writing, it is legislative form and established institutions for legal design, such as law commissions, that are simulated. Through mimicking processes of legislative scrutiny, stakeholder consultation, and back-casting, legal form is role-played to creatively conjure up a new socio-legal settlement.

With its disorientations, role simulations, and creative improvised movement, prefigurative law reform emerges as a kind of utopian play. But since play is often understood as a recreational, time-limited activity, I want to turn to “in play” instead, a concept that combines core play elements with persistence and change: hard fast whacks and slow gentle volleys.Footnote ³⁴ My argument is for the need to keep the utopian impulse in play, while recognizing that this may involve breaks, a return to play, and changes in form, including shifts between pragmatic and radical utopian endeavors, as questions of achievability and viability shape what is made and, in turn, played with. As such, in play provides an alternative response to the “problem” of unmet (or curtailed) accomplishments associated with failure and to the dismissal of practices described as not real.

In play is a familiar notion in sports where it suggests qualities of attention, (adversarial) coordination, persistence, rhythm, recuperation, and determination. Keeping a ball, for instance, in play involves skilled practice, but it is also subject to the rules of the sport, breach of which puts the ball out of play. In the case of mimetic legal projects, norms and rules may also prove central to the ambition and success of the play. For instance, feminist judgments projects initially required fictive judgments, written by feminist academics, to remain within the legal and social knowledges governing the original decision (Hunter, McGlynn, and Rackley Reference Hunter, McGlynn and Rackley2010, 15). This illustrates a point made by Bernard Suits (Reference Suits1978) about the rules of play. It would have been far easier for these academic pretend judges to write feminist judgments if they had not had to adhere to these rules. Yet the rules were part of the constitution of the play. Writing a judgment that breached the rules by treating the law as it ideally should be (rather than as it then was) would have not been to write a judgment of that case.Footnote ³⁵ In the case of experimental law writing, simulating law relies on mimicking how law works as a rule-based framework as well as the specific laws and legal framework of the place and time. To the extent that these rules are stretched or ignored, the activity becomes less recognizable as one of lawmaking.

Illegibility feeds opponents’ claims of unreal and failed law as they hold the proposal to a standard of legal authenticity to which they argue it falls short, refusing the counter-norms governing the legislative play of those creating the proposal. At the same time, their actions help to keep the proposal in play. Opponents’ participation is not essential since play does not have to be agonistic or combative; however, opposition can prove sustaining. Shared attention does not require participants to have the same experimental pleasure and interest, the same understanding of what is in play, or even how the play works,Footnote ³⁶ providing their actions help to keep it going. What defeats a game or other activity of play is not disagreement or rule transgression. Cheating or vigorous opposition may give energy to the play; what defeats play is the refusal of players to take part (see Huizinga Reference Huizinga1949).

Sustaining play is not always a good thing. Termination can happen because a conclusion has been drawn and there is nowhere else to go—a policy or law made and finalized. Being out of play is not necessarily problematic; it depends. On some occasions, it is play’s restarting that can be troubling, as when social justice principles that seemed institutionally accepted get challenged in ways that put them back into play. But, in other cases, it is how to sustain play that is the challenge.Footnote ³⁷ This may require bringing objects, like a speculative law reform, back in, picking them up from the grass where they have fallen. It may involve changing the game, field, and even the object, to hold onto the utopian impulse, as in the movement between decertification and legal recognition of new gender statuses (see also Cosker-Rowland Reference Cosker-Rowland2025). Keeping the future in play as a utopian plane responds to charges of failure and the not real. Failure assumes that the play has ended such that an assessment can be made (see also Maeckelbergh Reference Maeckelbergh and Monticelli2022; Davis Reference Davis2025). Decertification can be declared a failure because its development is over. It can also be declared non-existent or not real because casting around for its enactment shows no such law in force. Keeping a utopian future in play does not straightforwardly exclude failure and the not real, but it does suspend the finality or conclusiveness of any charge.