Silences, Silencing and Stickiness of Law: A Case of (Re)coding Gender (CBR project)

Overview

The project builds on Bhumika Billa’s doctoral work, which has developed a new theory of how law ‘codes’ and co-evolves with society. Law is constantly translating information about society. For instance, the contents of this application are legally coded as intellectual property, our computers as moveable property, and we are coded as legal subjects who are ascribed identity categories such as nationality, gender, class, race and so on. In this project, Bhumika will empirically study how the UK legal system has been recently coding and classifying the identity category of gender. The project aligns with the approaches of other socio-legal scholars who have examined the outcomes of legal coding of capital (Katharina Pistor, 2019), work (Zoe Adams, 2022), disability (Clare Williams, 2024), time (Emily Grabham, 2016), and bodies (Folúkẹ́ Adébísí, 2023). The aim is to extend this scholarship and shift focus from outcomes of legal coding to previously underexamined processes of legal coding. By studying the processes through which law codes society (particularly, social identity), the project will investigate the underlying mechanisms through which and why law tends to further exclude, marginalise or even oppress certain others who have been previously excluded, marginalised or oppressed in non-legal social processes. Three such mechanisms are tentatively identified in the project title: silences, silencing and stickiness.

Aims and objectives

The project will use as a case study the recent Supreme Court case, For Women Scotland v. The Scottish Ministers [2025] UKSC 1, where the court held that the meanings of ‘sex’, ‘man’ and ‘woman’ in UK’s anti-discrimination law (Equality Act 2010) refer to a biological understanding of sex (as opposed to ‘certified sex’). The study will combine doctrinal, empirical, and creative methods to examine the following:

i. how did the lawyers and judges code and (re)code the silences (or vagueness) around the legal definitions of sex, man and woman?
ii. whose voices were heard during the courtroom proceedings?

Through this case study, the research aims to identify the broader tendencies of legal system to accept and adopt certain information more easily than certain other information. Project lead Bhumika Billa tentatively call this tendency ‘stickiness’, that captures how, where, when, and why new information tends to stick during the processes of (re)coding silences. The research objectives are as follows:

i. to examine how the UK legal system has been coding and classifying the identity category of gender
ii. to understand the tendencies of legal systems to accept new information selectively, and more easily when it sticks (or aligns) with previously attributed power
iii. to identify the correlation between stickiness of legal systems and silencing of vulnerable voices
iv. to develop new ways of including previously silenced voices and rendering them legible for future coding by information systems (such as law and digital identity systems)

Progress

After literature reviews, deliberation, and consultation with project partners, the focus of the project has been narrowed down to the context of grassroots sport. Over the last few months, the following confirmed individuals/organisations have been onboarded on the project:

• Research partner: Shubham Jain (Special Advisor, Centre for Sport and Human Rights)
• Creative partner: Dr Jasmine Gardosi (Poet and Activist)
• Community partners: LEAP Sports Scotland (Glasgow), Ballers Against Bigots (London)
• Safeguarding and Ethics partners: Sports and Rights Alliance, Equity Coach
• Advisors: Professor Simon Deakin, Professor Davina Cooper, Dr Lena Holzer

Findings

The For Women Scotland judgment is impacting everyday lives of trans+ communities in accessing grassroots sports in their localities. This aspect is underexplored in academic literature and has remained on the peripheries of mainstream debates. The voices of vulnerable communities directly impacted by the trans-inclusionary policies in sport (resulting directly from the For Women Scotland case) have not been platformed enough. The renewed focus of the project seeks to address these gaps.