Queer Intersectional Perspective on LGBTI Human Rights Discourses by United Nations Treaty Bodies

ABSTRACT

The article suggests applying queer intersectionality to the analysis of international LGBTI human rights discourse – particularly, those of UN treaty bodies. By focussing on three single-axis committees, this paper looks at possibilities to respond to queer critique of LGBTI human rights strategies. In particular, the article provides an overview of three UN treaty bodies that monitor the Convention on the Elimination of All Forms of Discrimination against Women, the International Convention on the Rights of Persons with Disabilities, and the International Convention on the Elimination of All Forms of Racial Discrimination, in order to investigate if the addition of gender, race and (dis)ability angles to the analysis of LGBTI / SOGIESC rights and struggles could be helpful in addressing queer critique. Each of the three committee’s discourses are discussed from the perspective of its actual stance, as well as potential for future developments.

KEYWORDS:

• CEDAW
• CERD
• CRPD
• human rights
• intersectionality
• LGBTI
• queer legal theory
• sexuality
• SOGI
• treaty bodies

1. Introduction

United Nations (UN) human rights mechanisms include, as one of its main parts, treaty monitoring bodies. These bodies are committees of independent experts that monitor the implementation of nine core UN human rights treaties by their state parties.¹ These committees work through three main methods: country periodic reviews (assessment of implementation of the treaties by state parties); adoption of general recommendations or comments (interpretation of treaties in relation to certain rights, populations or methods of work); and consideration of individual complaints (petitions submitted by individuals or groups against state parties).²

None of the nine treaties include explicit language of sexual orientation, gender identity, gender expression, and sex characteristics (SOGIESC), or lesbian, gay, bisexual, trans, and intersex (LGBTI) persons. Nevertheless, LGBTI / SOGIESC discourse had emerged through practice of all treaty bodies by 2017, and the committees had addressed different violations based on SOGIESC in their concluding observations, general comments (recommendations) and decisions on individual communications.³ Moreover, treaty bodies have been credited with being pioneers in tackling sexual orientation and gender identity (SOGI) issues by some scholars, as for example by Elizabeth Baisley in their periodisation of the emergence of international norms pertaining to SOGI.⁴

At the same time, treaty bodies have also been widely criticised for adopting only limited – if any – intersectional approaches in their analysis of human rights violations,⁵ and for being liberal and assimilationist rather than radically queer in their vision of LGBTI / SOGIESC human rights.⁶

This article is aimed at providing the combined queer and intersectional analysis to the LGBTI / SOGIESC discourses formed by three ‘single-axis’ treaty bodies – CEDAW, CPRD and CERD, in order to see if queer intersectional approach has a potential to overcome the critique of LGBTI / SOGIESC treaty bodies’ discourses presented by queer scholars.

2. Queer Legal Theory, Intersectionality and Human Rights

Queer legal theory and theory of intersectionality both provide valuable perspectives on critical analysis of LGBTI / SOGIESC human rights developments. This section presents a brief overview of queer legal theory and intersectionality, as well as queer intersectionality. The genre of this article makes it impossible to provide a comprehensive compilation and analysis of plethora of works in both fields. However, this section aims to cover main ideas of queer legal theory and intersectionality relevant for the further analysis.

The emergence of queer theory was associated with the critique of gay and lesbian studies and politics in the United States in 1990s. The main underpinnings of queer theory include problematisation of identities, binaries and oppositions, norm and normality, and essentialist stable categories. Queer theory rejects essentialist understanding of gender, sex and sexuality, and instead considers them to be constructed by discourse, fluid and performative.⁷

Since its inception, queer theory has been applied to different academic disciplines and fields of studies, including queer legal theory. Queer legal theory, inheriting the traditions of critical legal theory⁸ and developing alongside with other branches of ‘outsider jurisprudence’ such as critical race theory or feminist legal theory, was born and is growing independently, in parallel, or in critical relations to what can be called ‘LGBT legal studies.’⁹

Following the Foucauldian tradition, queer legal theory considers law as one of the discourses which constructs social norms. For example, sexuality and its particular forms (or related identities) are not natural and innate but constructed, and law functions as one of the most powerful discourses creating these identities and concepts.¹⁰ Law is not the only constructive discourse, but the privileged one, due to its support by the modern liberal state, with its significant resources, and affects the lives of people directly.¹¹

Consequently, the task of queer legal theorists is to deconstruct legal discourses and to identify assumptions enshrined in them. Tom Dreyfus characterises queer legal theory as a ‘reconstructive human rights project’ (meaning reconstructing rights and rights-subjects).¹² For Damian Gonzalez-Salzberg, ‘queer deconstructive approach’ suggests looking for overlooked elements in law, analyse naturalisation of certain legal concepts, and identifying heteronormative assumptions enshrined in legal materials.¹³ Queer perspective on law also suggests a certain way of re-reading (legal) history to see what and who has been excluded and unseen: ‘it is a call to recover lost voices through a rereading of the law from the viewpoint of the queer subaltern and paying attention to new voices that have emerged in the process of political engagement.’¹⁴

Queer legal theory problematises the essentialist understanding of fixed and binary identities constructed by law, including human rights law.¹⁵ In particular, queer legal scholars criticise the law’s building of boundaries of ‘normality’ and disciplining those outside of these boundaries,¹⁶ the construction of the ‘victim subject’,¹⁷ and the universalisation or westernisation of the gay / queer law’s subject.¹⁸

Anti-essentialist stance, as well as its critique of fixed stable identities pairs queer legal theory with the idea of intersectionality. The term ‘intersectionality’ has been famously coined by Kimberlé Crenshaw in her analysis of how single-axis discrimination doctrine made the struggles faced by Black women invisible.¹⁹ Since then, the theory of intersectionality has entered the field of international human rights law,²⁰ and UN treaty bodies in particular.²¹ A number of legal scholars suggested different modes of operationalisation of intersectionality in practice of international human rights mechanisms.²²

The importance of intersectionality in queer legal theory has been emphasised by many scholars. According to Carl Stychin, no single identity category (particularly sexual categories) should be considered per se as the most meaningful or important, otherwise ‘the complexity of the matrices of oppression in which subjects operate’ is overlooked.²³ Dianne Otto calls for ‘complex and mobile understanding of power’ instead of identitarian separation²⁴ and points out that analytics of sexuality ‘are deeply intertwined with other systems of hierarchy.’²⁵ Ratna Kapur criticises assimilation liberal strategies around LGBT human rights as remaining embedded in racial and cultural exclusions and reproducing racial and cultural binaries.²⁶ According to her, liberal advocacy strategies only include some queer subjects (the ‘good homosexuals’) while dismissing ‘non-compliant sexual, gender and racial others.’²⁷

The term ‘queer intersectionality’ has been suggested soon after the publication of Kimberle Crenshaw’s seminal papers.²⁸ In 1994, Darren Rosenblum claimed that victories of lesbian and gay litigants in the American courts did not necessarily symbolise queer victories as they may serve only certain queers who are perfect citizens ‘but-for’ their sexual orientation.²⁹ The need for queer intersectionality stems from intersectionality of the subject (‘most queers face multiple aspects of discrimination’³⁰), as well as the power systems (homophobia is rooted in family, gender, age, class and race relations³¹).

Inseparability of queer legal studies and intersectionality is reflected by Francisco Valdes in his periodisation of sexual orientation legal scholarship in the United States. The first stage is characterised as based on ideas of assimilation, aimed at erasing different legal treatment between homo- and heterosexual persons and, consequently, focusing on such topics as discrimination or marriage. Notably, this first stage is also unidimensional in its sole focus on sexual orientation analysed as a single and independent characteristic. By contrast, queer legal theory is concerned with liberation instead of assimilation; it provides multidimensional analysis, addresses subordination of diverse groups, and is aimed at dismantling interlocking systems of oppression.³²

Queer legal theory and theory of intersectionality – or queer intersectionality as their combination – will now be applied to a more practical field, namely the work of UN treaty bodies, in order to understand if the addition of intersectionality has a potential to respond to queer critique of LGBTI human rights discourses.

3. CEDAW, CRPD and CERD: Queer Intersectional Potential

Despite the fact that intersectionality has moved from feminist theory and activist practice to legal discourse, UN treaty bodies are being criticised for not using intersectionality comprehensively and meaningfully.³³

As suggested by Johanna Bond, the structure of the UN human rights treaty-based system excludes intersectional perspectives because the conventions and their respective mechanisms are focused on single aspects.³⁴ I would argue, however, that this very structure provides unique opportunities for queer intersectionality as any introduction of LGBTI / SOGIESC dimension into the discourse formed by single-axis treaty bodies would necessarily stimulate reflections on connecting points between at least two spheres – for example, sexuality and race (CERD), gender and sexuality (CEDAW) or (dis)ability and sexuality (CRPD). In addition, treaty bodies that engage with certain identities, populations and hierarchies – in contrast with their more mainstream counterparts – allow, according to Loveday Hodson, travelling between the centre and the periphery,³⁵ thus building bridges between otherwise marginalised communities and the UN system. Finally, single-axis treaty bodies, at least in theory or queer imagination, can respond to certain critique of LGBTI / SOGIESC discourse formed in international human rights law by queer legal scholars.³⁶

Single-axis treaty bodies, particularly CEDAW, CRPD and CERD, have all developed some discourses around LGBTI / SOGIESC, although to different extent and with different intensity. When it comes to country periodic reviews, all three committees have made recommendations and other references to LGBTI / SOGIESC in their concluding observations (COs) to state parties (see Figure 1). Regarding individual communications, however, only CEDAW has adopted four decisions involving sexual orientation,³⁷ and no such cases have been reviewed by CERD and CRPD.³⁸

Figure 1. Concluding observations by CEDAW, CRPD and CERD (2014–2022). Based on the information collected by the author as part of her work at ILGA World, a worldwide federation of more than 1700 organisations from over 160 countries and territories campaigning for LGBTI human rights.

3.1. CEDAW

The most significant development of L(G)BTI / SOGIESC discourse not only among single-axis but treaty bodies in general, as well as UN human rights mechanisms, occurred in the context of CEDAW. This committee has also been receiving attention from queer legal scholars for a while, particularly because of its focus on women and the question of gender as a legal category.³⁹

The ambitions of queer legal theory to reveal the mechanisms of naturalisation of certain categories such as ‘[hetero]sexual ordering’⁴⁰ and to look for hetero/cis/mononormative assumptions underpinning the law and its discourses⁴¹ could be paired with the CEDAW convention’s aspiration to modify gender-based social and cultural patterns of conduct, to eliminate gender-based prejudices and customary and all other practices which are based on stereotyped gender roles.⁴²

In practice, examples of stereotypes and harmful practices based on SOGIESC / LGBTI addressed by CEDAW include so-called ‘conversion therapies,’⁴³ ‘corrective rapes,’⁴⁴ and non-consensual medical treatment of intersex children.⁴⁵

Despite significant number of recommendations made on the topic of gender-based violence in relation to LBTI women,⁴⁶ the latter are not constructed as only ultimate victims in the CEDAW discourse. This is evident from the Committee’s recommendations on temporary special measures focussing on LBT women in politics⁴⁷ or recommendations to ensure LBT women’s participation in political and public life, including via full realisation of their right to freedom of peaceful assembly.⁴⁸

CEDAW’s non-essentialist approach to the definition of ‘woman’ can be illustrated by its recommendations on trans persons and legal gender recognition – particularly, recommendations to ensure that recognition of legal gender is not based on abusive requirements, such as mandatory gender reassignment surgery.⁴⁹ The most recent examples, however, also demonstrate the limitations of the committee’s approach to gender and the lack of its dynamic intersectional view. In 2020, following interventions from some women’s groups from Portugal, the committee noted that ‘legislation prohibiting sex-based discrimination has been superseded by gender-neutral legislation and policies and measures to address discrimination on the basis of sexual orientation and gender identity.’⁵⁰ The state party was requested to ‘provide information about the effects of that approach on the recognition of de facto discrimination against women, and indicate the measures taken to promote substantive equality between women and men.’⁵¹ In 2022, in its concluding observations on Portugal, the Committee expressed concerns over ‘the gradual dilution of the concept of “sex” and its replacement by the concept of “gender” across policies and legislation’⁵² and recommended to Portugal to avoid ‘the broad use of the concept of “gender” when addressing the rights of women.’⁵³

Moreover, intersectional queer critique of CEDAW discourse could be extended beyond its approach to L(G)BTI. After several years of tightroping between two opposite approaches to sex work / prostitution, the Committee seems to lean towards the abolitionist perspective.⁵⁴

Queer intersectionality has particular potential for CEDAW decisions on individual communications. Unlike ‘generalised’ treaty bodies such as the HRCtee, CEDAW has one specific exception allowing the committee to re-evaluate domestic authorities’ assessment of facts or application of national law in individual cases. This exception from the deference doctrine is possible when national assessment was biased or based on harmful gender stereotypes.⁵⁵ Such an approach challenges the binary underpinnings of international law,⁵⁶ namely the opposition between national and international.

Yet, the current CEDAW jurisprudence on cases involving sexual orientation demonstrates that the committee has yet to fully explore its queering potential. From the four decisions on communications brought by lesbian applicants, two acknowledged the violation of the convention,⁵⁷ while in two other decisions claims were considered inadmissible for the reason of national authorities having made their assessment of the facts.⁵⁸

Notably, in one of the inadmissibility decisions, CEDAW failed to challenge the national authorities’ disbelief in an asylum seeker’s claim of being a lesbian, despite the authorities’ refusal to call the applicant’s recent female partner as a witness to confirm the applicant’s sexual orientation.⁵⁹ In the second inadmissibility decision, the Committee did not question the national court’s assessment of lesbophobic insults by an MP and did not pay attention to intersectional dynamics (involving sexual orientation and gender but also class, national identity and occupation) evident from the case and the positionality of the applicant and the MP.⁶⁰

At the same time, in its decision ON and DP v Russian Federation, the committee did recognise that national authorities were led by stereotypes when dealing with a case of lesbophobic attack:

by failing to investigate the authors’ complaint about the violent attack against them, as lesbian women, promptly, adequately and effectively and by failing to address their case in a gender-sensitive manner, the authorities allowed their actions to be influenced by negative stereotypes associated with lesbian women.⁶¹

In this case, CEDAW did not only recognise intersectionality in its assessment of the case facts but also engaged with the context – in particular, by referring to its concluding observations on Russia with recommendations to improve the situation of LBT women.⁶² Moreover, the remedies and general recommendations defined by CEDAW as a result of the case review, can also be characterised as intersectional, taking into account both gender and sexual orientation of the communication authors and generally lesbian women.⁶³

The latest decision of CEDAW related to sexual orientation, Rosanna Flamer-Caldera v Sri Lanka, represents even more comprehensive intersectional approach allowing at least some response to queer critique of LGBTI human rights discourse.

First, this case constructs quite a new version of the non-Western queer subject, compared to the rest of the treaty bodies’ case-law involving SOGI.⁶⁴ Prior to this case, the vast majority of SOGI-related communications have been submitted against states in the Global North and Eastern Europe by LGBT people from these countries. Even when the applicants were originally from the Global South, their claims were related to Western states that have denied their asylum applications. By contrast, Rosanna Flamer-Caldera is a national of Sri Lanka living in the country and advocating for LGBTI human rights there. She is a lesbian / queer non-Western subject living and claiming her identity and positionality in a non-Western environment.

Second, the queer subject of this case is complex, as is her environment. She is a woman, an open lesbian with gender non-conforming expression, and a prominent activist.⁶⁵ She is both living in violent environment and deserving protection, and active and changing her own life as well as the situation of her community. Following the applicant’s arguments, CEDAW recognised the connection between criminalisation of consensual same-sex sexual acts between women and gender-based violence experienced by them.⁶⁶ Further, the committee also identified the violation of the author’s right to participate in non-governmental organisations and associations concerned with the public and political life of the country.⁶⁷

Third, the discourse of rights formed by CEDAW in this case is very different from the one adopted by the HRCtee in Toonen v Australia,⁶⁸ an early case concerning the criminalisation of consensual same-sex sexual acts. The Toonen case has been critisised by queer scholars for entrenching heteronormativity and assimilation through its discourses of privacy and tolerance.⁶⁹ Indeed, violations found in Toonen were mostly related to the ‘interference with one’s privacy’ under article 17 of the International Covenant on Civil and Political Rights.⁷⁰ By contract, in Rosanna Flamer-Caldera the discourse of privacy is not the focus of the decision, and only mentioned by the petitioner herself among a number of different rights violated by the State Party.⁷¹ As a result of the case assessment, CEDAW found six different types of violations, from direct and indirect discrimination⁷² and gender-based violence⁷³ to the state’s failure to eliminate stereotypes and prejudices,⁷⁴ from violation of the right to participate in non-governmental organisations⁷⁵ to the lack of non-discriminatory access to the protection and remedies,⁷⁶ and to the right to family and relations.⁷⁷

3.2. CRPD

In contrast with the long herstory of CEDAW’s exploration of sexuality topics, CRPD – being one of the youngest committees – has a lower number and percentage of documents referring to LGBTI / SOGIESC. Nevertheless, the committee has developed some discourses around the rights of LGBTI persons with disability during the past decade.⁷⁸

Importantly, the constructionist view on gender and sexuality has been reflected in the CRPD’s stance on the dynamics between (dis)ability and LGBT. In several country reviews, the Committee has criticised the confusion between having a disability and having a non-heterosexual sexual orientation, as well as practices of ‘conversion therapy.’⁷⁹

The construction of the queer subject in the CRPD’s discourse has a strong foundation in the concept of participation and, therefore, social and political agency.⁸⁰

The Committee has also paid attention to the gender diversity of people with disabilities. For example, it called on Canada to establish special measures to ensure that transgender and gender-diverse persons with disabilities have equal access to health services, including gender-affirming health care.⁸¹

Yet, for a fully intersectional queer approach the Committee has not paid enough attention to issues of sexuality, independent living and queer kinship.⁸² For instance, the only references to SOGIESC in the context of the right to respect for home and the family were the Committee’s recommendation to Australia to ensure equal access to assisted reproduction for LGBTIQ persons with disabilities,⁸³ and a question to Venezuela about counselling for persons with disabilities on matters of sexual orientation.⁸⁴

3.3. CERD

Finally, CERD has provided the least developed portrayal of the queer subject among the three single-axis committees. Despite having started from addressing registered partnerships in 2007,⁸⁵ by 2022 the Committee has only made a very few references to SOGI / LGBTI, mostly listing them among other grounds for discrimination or groups subjected to multiple forms of discrimination.⁸⁶ The Committee’s recent concluding observations on Brazil, adopted in December 2022, present an example of more systemic analysis of the intersections between SOGIESC and racial discrimination – in the context of disaggregated data collection, violence in health-care settings, femicide, racial profiling and political representation.⁸⁷ Yet, this remains rather an isolated rare case, and, if addressed at all, SOGIESC issues are mentioned only in passing in the majority of concluding observations adopted by CERD.

At the same time, many critiques of international human rights law by queer theory could have been responded to in the context of CERD. The CERD Committee may become a unique space for the de-universalisation of queer subjects and addressing non-Western sexual, cultural and gender identities. For instance, the HRCtee⁸⁸ and the Committee on Economic, Social and Cultural Rights⁸⁹ both addressed the situation of hijras in their review of Bangladesh. The Committee against Torture referred to ‘two-spirited and LGBT persons’ in its list of issues for Canada,⁹⁰ and to ‘transgender and transvestite persons’ in its concluding observations on Argentina.⁹¹ Taking into account its expertise and mandate, CERD may provide a deeper analysis of indigenous and ancestral identities thus challenging the gender binary enshrined in the international human rights law.

Some other areas for queer intersectional developments of CERD discourse could include the colonisation perspective of oppressions faced by racialised queer communities or the perception of identities and needs of asylum seekers through Western lenses.

4. Conclusion

The considerations presented in this paper are a sketch rather than comprehensive research. The formation of discourses around the queer subject by single-axis treaty bodies, as well as creative ways of using their unique features, would require a more nuanced and deep analysis which is outside of the scope of this current article. However, even this limited overview of the three single-axis committee’s practice demonstrates the limits but also the opportunities for international queer critique and highlights the different directions in which the discourse of the treaty bodies could be shifted.

Each of the three single-axis treaty bodies allows intersectional responses to queer critique in relation to LGBTI human rights discourses. For example, the race dimension of CERD analysis has the potential to deconstruct and challenge the universal / Western gay subject; intersections of (dis)ability and SOGIESC in CRPD discourse can help in questioning the construction of borders of ‘normality’, particularly through the pathologisation discourses around LGBTI identities; CEDAW has already shown an alternative – not based exclusively on the privacy discourse – approach to criminalisation of consensual same-sex sexual acts.

However, from the perspective of current stand of the three treaty bodies, many queer intersectional opportunities remain illusory or theoretical. One reason for this is the dynamic between progressive and conservative forces within the committees, as well as the lack of awareness about specificity of SOGIESC / LGBTI living realities among committee members. On the other side, with the growing opportunities for civil society and individuals to take part in treaty bodies’ processes – through submitting shadow reports, communications, third-party interventions, suggestions for general recommendations, participation in official and non-official briefings with committee members both online and in person – it is the queer subject herself who is also capable of influencing the discourse.

Participation of LGBTI groups in United Nations spaces, as well as formal advocacy more generally, have received quite a lot of scepticism from queer scholars. Ratna Kapur, in particular, considered the increasing involvement of LGBTI advocates in UN processes as ‘evidence of the de-radicalisation of queer in human rights.’⁹² Yet, I would argue that being there is also queer; claiming the voice is queer; choosing our own language is queer; building alliances and coalitions to dismantle – is radically queer.

Kathryn McNeilly suggests that we queer international human rights law by challenging its foundations – specifically, the relationships between human rights and states or state-alike institutions, seeing human rights as existing and developing in multiple locations and contexts.⁹³ I share this vision and see a radical potential of standing up, taking the agency, imagining and re-imagining, being vulnerable in telling our experiences and sharing our feelings, becoming stronger (or not) with each of the cases, but at the end – transforming and co-creating. Reclaiming the rights, reformulating the discourses, rebuilding the strategies, tools and methods of advocacy, thus coming together and participating in the larger, transnational intersectional coalition-building – this is how I imagine the use and the usage of international human rights for the intersectional queer struggles. In practical terms, this can include, for example, facilitating spaces for those LGBTI groups whose perspectives are usually not taken into account – grassroots collectives from the Global South, groups led by LGBTI persons with disabilities and racialised LGBTI persons. This can also involve solidarity actions, from feminists organising to support the right of trans persons to obtain legal gender recognition based on self-identification, to third-party interventions by larger organisations focussed on race, disability and gender for cases from LGBTI complainants submitted to CERD, CRPD and CEDAW. At the end, queer theory considers law as only one of the discourses, and through the usage of law we can build queer intersectional solidarity that goes beyond borders of states, identities and legal texts.

Acknowledgements

I would like to express my deepest gratitude to Bérénice K. Schramm, Lena Holzer, Juliana Santos De Carvalho and Manon Beury – first, for organising the virtual queer workshop ‘International Law Dis/Oriented’ hosted by the Geneva Graduate Institute in 2021, where the earlier version of this article was presented; second, for all their support, suggestions and patience, in their capacity as the editors of this special issue, but also as fellow queer feminist travellers. I am also deeply thankful to the two anonymous reviewers, for their careful consideration of my writing, all their comments, suggestions and ideas – they helped me to improve this article, but also gave additional inspiration for my future journey in queer legal scholarship and practice.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Kseniya A. Kirichenko

Kseniya A Kirichenko is pursuing her PhD research at the University of Leicester (United Kingdom). She is also UN Programmes Manager at ILGA World (Geneva, Switzerland), a worldwide federation of more than 1700 organisations from over 160 countries and territories campaigning for LGBTI human rights. She received her law degree and completed a PhD course in civil and family law in Siberia, Russia where she also taught law courses and conducted academic research on comparative legal regulation of assisted reproductive technologies. During her career, she litigated LGBTI cases before national courts, the European Court of Human Rights and UN treaty bodies. She built, managed, and led programmes on strategic litigation, national and international advocacy, human rights research and education, monitoring and documentation. She authored multiple reports on LGBTI human rights, including for national human rights institutions, the Council of Europe’s Commissioner for Human Rights and the Committee of Ministers, United Nations treaty bodies and special procedures, and the Organization for Security and Co-operation in Europe. She also served as a Board Member of the Russian LGBT Network, Transgender Legal Defense Project and the EuroCentralAsian Lesbian* Community (EL*C), was an International Fellow with the Global Network for Public Interest Law (PILNet) and a Visiting Scholar with Columbia Law School.

Notes

1 International Convention on the Elimination of All Forms of Racial Discrimination (1969) and the Committee on the Elimination of Racial Discrimination (CERD); International Covenant on Economic, Social and Cultural Rights (1976) and the Committee on Economic, Social and Cultural Rights; International Covenant on Civil and Political Rights (1976) and the Human Rights Committee (HRCtee); Convention on the Elimination of All Forms of Discrimination against Women (1979) and the Committee on the Elimination of Discrimination against Women (CEDAW); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (1987) and the Committee against Torture; Convention on the Rights of the Child (1990) and the Committee on the Rights of the Child; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (2003) and the Committee on Migrant Workers; International Convention on the Rights of Persons with Disabilities (2008) and the Committee on the Rights of Persons with Disabilities (CRPD); and International Convention for the Protection of All Persons from Enforced Disappearance (2010) and the Committee on Enforced Disappearances. In addition, the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) established under the Optional Protocol of the Convention against Torture visits places of detention to prevent torture and other cruel, inhuman or degrading treatment or punishment.

2 See Office of the High Commissioner for Human Rights (OHCHR), ‘What the Treaty Bodies Do’ <https://www.ohchr.org/en/treaty-bodies/what-treaty-bodies-do> accessed 6 March 2023. For more detail on treaty bodies’ working methods see eg Olivier de Schutter, International Human Rights Law: Cases, Materials, Commentary (Cambridge University Press 2019) 869–942. Under the country periodic review procedure, treaty bodies usually adopt two types of documents, namely lists of issues (questions for state parties to clarify certain aspects related to the implementation of treaties) and concluding observations (documents where treaty bodies highlight the progress made by state parties in the implementation of the treaty, as well as the remaining concerns and recommendations to address them). General recommendations (general comments) typically provide clarification of state parties’ obligations in relation to particular areas of human rights, populations or articles of the respective treaties. For instance, in 2016 CRPD adopted General Comment No. 3 on women and girls with disabilities (UN Doc CRPD/C/GC/3). In this document, the Committee has defined ‘multiple discrimination’ and listed gender identity and sexual orientation among other grounds for discrimination (ibid 4 (c)). Finally, most of the treaty bodies can also adopt decisions on individual communications brought against state parties by individuals or groups of individuals, after having exhausted domestic remedies. An example of such adjudication is a decision by the HRCtee adopted in 1994 in the case Toonen v Australia (31 March 1994, UN Doc CCPR/C/50/D/488/1992), the first decision of treaty bodies recognising the violation of international human rights law in a case concerning sexual orientation.

3 Kseniya Kirichenko, United Nations Treaty Bodies: References to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics: Annual Report 2017 (ILGA World 2020). More reports <https://ilga.org/treaty_bodies_annual_reports>.

4 Elizabeth Baisley, ‘Reaching the Tipping Point? Emerging International Human Rights Norms Pertaining to Sexual Orientation and Gender Identity’ (2016) 38 Human Rights Quarterly 134.

5 See eg Lorena Sosa, Intersectionality in the Human Rights Legal Framework on Violence against Women: At the Centre or the Margins? (Cambridge University Press 2017) 61–120; Amanda Barbara Allen Dale, ‘Intersectional Human Rights at CEDAW: Promises, Transmissions and Impacts’ (DPhil dissertation, York University 2018); Paulina Jiménez Fregoso, ‘Intersectionality as a Tool to Adjudicate International Human Rights Law: A Case Study on the Inter-American System of Human Rights’ (DPhil thesis, University of Essex 2020) 115–116; Johanna Bond, Global Intersectionality and Contemporary Human Rights (Oxford University Press 2021) 54–57.

6 See eg Wayne Morgan, ‘Queering International Human Rights Law’ in Carl Stychin and Didi Herman (eds), Sexuality in the Legal Arena (Athlone Press 2000) 208, 220–221; Darren Rosenblum, ‘Unsex CEDAW, or What's Wrong with Women's Rights’ (2011) 20 Columbia Journal of Gender and Law 98; Tom Dreyfus, ‘The “Half-Invention” of Gender Identity in International Human Rights Law: From CEDAW to the Yogyakarta Principles’ (2012) 37 Australian Feminist Law Journal 33; Dianne Otto, ‘Between Pleasure and Danger: Lesbian Human Rights’ (2014) 6 European Human Rights Law Review 618.

7 See eg Teresa de Lauretis, ‘Queer Theory: Lesbian and Gay Sexualities: An Introduction’ (1991) 3 differences: Journal of Feminist Cultural Studies I; Eve Kosofsky Sedgwick, Epistemiology of the Closet (Penguin 1994); Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge 2007); Michel Foucault, The History of Sexuality: Volume 1: The Will to Knowledge (tr Penguin Classics 2020).

8 See eg Francisco Valdes, ‘Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of “Sex,” “Gender,” and “Sexual Orientation” in Euro-American Law and Society (1995) 83 California Law Review 1, 362, 367; James Gilchrist Stewart, ‘Demystifying CLS: A Critical Legal Studies Family Tree’ (2020) 41 Adelaide Law Review 121.

9 See eg Brenda Cossman, ‘Queering Queer Legal Studies: An Unreconstructed Ode to Eve Sedgewick (and Others)’ (2019) 6 Critical Analysis of Law 23, 23.

10 See eg Morgan, ‘Queering International Human Rights Law’ (n 6) 212–222; Sami Zeidan, ‘The Limits of Queer Theory in LGBT Litigation and the International Human Rights Discourse’ (2006) 14 Willamette Journal of International Law and Dispute Resolution 73, 76.

11 Wayne Morgan, ‘Queer Law: Identity, Culture, Diversity, Law’ (1995) Australian Gay & Lesbian Law Journal 1, 8–9.

12 Dreyfus (n 6).

13 Damian Gonzalez-Salzberg, ‘A queer approach to the Advisory Opinion 24/2017 on LGBT rights’ in Damian Gonzalez-Salzberg and Loveday Hodson (eds), Research Methods for International Human Rights Law: Beyond the Traditional Paradigm (Routledge 2020) 98, 101–103.

14 Arvind Narrain and Alok Gupta, ‘Introduction’ in Arvind Narrain and Alok Gupta (eds), Law Like Love: Queer Perspectives on Law (Yoda Press 2011) xiii.

15 See eg Laurie Rose Kepros, ‘Queer Theory: Weed or Seed in the Garden of Legal Theory?’ (1999–2000) 9 Law and Sexuality 279, 283–284; Aleardo Zanghellini, ‘Queer, Antinormativity, Counter-Normativity and Abjection’ (2009) 18 Griffith Law Review 1, 2; Adam R Romero, ‘Methodological Description: “Feminist” and “Queer” Legal Theories’ in Martha Albertson Fineman, Jack E Jackson and Adam R Romero (eds), Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations (Routledge 2016) 190–191; Cossman (n 9) 25.

16 Carl F Stychin, Law’s Desire: Sexuality and the Limits of Justice (Routledge 1995) 7; Sandra Duffy, ‘Contested Subjects of Human Rights: Trans- and Gender-Variant Subjects of International Human Rights Law’ (2021) 84 Modern Law Review 1041, 1045.

17 See eg Dianne Otto, ‘Disconcerting “Masculinities”: Reinventing the Gendered Subject(s) of International Human Rights Law’ in Doris Buss and Ambreena Manji (eds) International Law: Modern Feminist Approaches (Hart Publishing 2005) 118–119; Darren Rosenblum, ‘Rethinking International Women’s Human Rights Through Eve Sedgwick’ (2010) 33 Harvard Journal of Law and Gender 349, 352–356; Dreyfus (n 6) 40.

18 See eg Joseph A Massad, Desiring Arabs (University of Chicago Press 2007) 161; Ratna Kapur, ‘The (Im)possibility of Queering International Human Rights Law’ in Dianne Otto (ed), Queering International Law: Possibilities, Alliances, Complicities, Risks (Routledge 2019) 138.

19 Kimberlé Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) 1989 University of Chicago Legal Forum 139; Kimberlé Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color’ (1991) 43 Stanford Law Review 1241.

20 See eg Ivona Truscan and Joanna Bourke-Martignoni, ‘International Human Rights Law and Intersectional Discrimination’ (2016) 16 Equal Rights Review 103; Gauthier de Beco, ‘Protecting the Invisible: An Intersectional Approach to International Human Rights Law’ (2017) 17 Human Rights Law Review 633; Sosa (n 5); Shreya Atrey and Peter Dunne (eds), Intersectionality and Human Rights Law (Hart Publishing 2020); Jiménez Fregoso (n 5).

21 See eg Meghan Campbell, ‘CEDAW and Women’s Intersecting Identities: A Pioneering New Approach to Intersectional Discrimination’ (2015) 11 Revista direito GV 479; Pok Yin S Chow, ‘Has Intersectionality Reached its Limits? Intersectionality in the UN Human Rights Treaty Body Practice and the Issue of Ambivalence’ (2016) 16 Human Rights Law Review 453; Dale (n 5).

22 See eg Jiménez Fregoso (n 5) 166–226; Kristin Henrard, ‘Human Rights, Intersectionality, and Superdiversity’ in Fran Meissner, Nando Sigona, and Steven Vertovec (eds), The Oxford Handbook of Superdiversity (Oxford University Press 2022).

23 Stychin (n 16) 142.

24 Dianne Otto, ‘Introduction: Embracing Queer Curiosity’ in Dianne Otto (ed), Queering International Law: Possibilities, Alliances, Complicities, Risks (Routledge 2018) 11.

25 ibid 1.

26 Kapur (n 18) 132–133.

27 ibid 136.

28 See (n 19).

29 Darren Rosenblum, ‘Queer Intersectionality and the Failure of Recent Lesbian and Gay Victories’ (1994) 4 Law & Sexuality: Rev Lesbian & Gay Legal Issues 83.

30 ibid 89.

31 ibid 90.

32 Francisco Valdes, ‘Queering Sexual Orientation: A Call for Theory as Praxis’ in Martha Albertson Fineman, Jack E Jackson and Adam R Romero (eds), Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations (Routledge 2016).

33 See (n 5).

34 Johanna E Bond, ‘International Intersectionality: A Theoretical and Pragmatic Exploration of Women’s International Human Rights Violations’ (2003) 52 Emory Law Journal 71, 93.

35 Loveday Hodson, ‘Women’s Rights and the Periphery: CEDAW’s Optional Protocol’ (2014) 25 European Journal of International Law 561.

36 This would, however, require at least some level of queer (intersectional) imagination, creativity and courage from UN experts. Otherwise, single-axis focus risks transforming into tunnel vision where only a limited circle of subjects bearing certain characteristics (‘but-for’) are deemed recognisable / intelligible / worth of protection. A striking example is a recent – though still quite marginalised – stance on trans women’s rights adopted by some human rights experts, such as the current UN Special Rapporteur on violence against women Reem Alsalem or the former judge of the Inter-American Court of Human Rights Elizabeth Odio Benito. See eg Vicky Hernández et al v Honduras, judgment of 26 March 2021, partially dissenting opinion of Judge Elizabeth Odio Benito; Mandate of the Special Rapporteur on violence against women and girls, its causes and consequences, Letter Ref. OL GBR 14/2022 (29 November 2022). As Sara Ahmed elaborates, ‘there can be violence at stake in being recognizable as women; there can be violence at stake in not being recognizable as women’ (Sara Ahmed, Living a Feminist Life (Duke University Press 2017) 15.

37 AS v Denmark (26 February 2018) UN Doc CEDAW/C/69/D/80/2015; KK v Russian Federation (25 February 2019) UN Doc CEDAW/C/72/D/98/2016; ON and DP v Russian Federation (24 February 2020) UN Doc CEDAW/C/75/D/119/2017; Rosanna Flamer-Caldera v Sri Lanka (21 February 2022) UN Doc CEDAW/C/81/D/134/2018.

38 See ILGA World, Treaty Bodies’ Jurisprudence on SOGIESC Issues, <https://ilga.org/Treaty-Bodies-jurisprudence-SOGIESC> accessed 6 March 2023.

39 See eg Berta Esperanza Hernández-Truyol, ‘Unsex CEDAW? No! Super-Sex It!’ (2011) 20 Columbia Journal Gender and Law 195; Rosenblum, ‘Unsex CEDAW’ (n 6); Dianne Otto, ‘Between Pleasure and Danger’ (n 6).

40 Dianne Otto, ‘Introduction: Embracing Queer Curiosity’ in Dianne Otto (ed), Queering International Law: Possibilities, Alliances, Complicities, Risks (Routledge 2018) 2.

41 Damian Gonzalez-Salzberg (n 13) 101.

42 Article 5 (a) of the CEDAW convention.

43 See eg CEDAW, Concluding Observations: Malaysia (14 March 2018) UN Doc CEDAW/C/MYS/CO/3-5 [48c]; Concluding Observations: Ecuador (24 November 2021) UN Doc CEDAW/C/ECU/CO/10 [19]-[20].

44 See eg List of Issues: Ethiopia (3 August 2018) UN Doc CEDAW/C/ETH/Q/8 [8].

45 See eg List of Issues: United Kingdom of Great Britain and Northern Ireland (3 August 2018) UN Doc CEDAW/C/GBR/Q/8 [8]; List of Issues prior to reporting: Netherlands (9 July 2021) UN Doc CEDAW/C/NLD/QPR/7 [8f].

46 See eg General Recommendation No. 35 (2017) on gender-based violence against women, updating general recommendation No. 19 (26 July 2017) UN Doc CEDAW/C/GC/35 [12], [29]; ON and DP v Russian Federation (n 37).

47 See eg Concluding Observations: Ecuador (n 43) [25]-[26]; Concluding Observations: Sweden (24 November 2021) UN Doc CEDAW/C/SWE/CO/10 [28].

48 See eg Concluding Observations: Kyrgyzstan (29 November 2021) UN Doc CEDAW/C/KGZ/CO/5 [48e].

49 See eg Concluding Observations: Pakistan (10 March 2020) UN Doc CEDAW/C/PAK/CO/5 [43]-[44]; List of Issues prior to reporting: Ukraine (11 March 2020), UN Doc CEDAW/C/UKR/QPR/9 [23]; List of Issues prior to reporting: Slovakia (27 July 2020), UN Doc CEDAW/C/SVK/QPR/7 [25]; Concluding Observations: Kazakhstan (12 November 2019) UN Doc CEDAW/C/KAZ/CO/5 [26].

50 List of Issues: Portugal (17 November 2020) UN Doc CEDAW/C/PRT/Q/10 [2].

51 ibid.

52 Concluding Observations: Portugal (12 July 2022) UN Doc CEDAW/C/PRT/CO/10 [18].

53 ibid 19.

54 See eg Felipe Jaramillo Ruiz and Lina-María Céspedes-Báez, ‘El feminismo de la gobernanza en la CEDAW: la cuestión sobre el trabajo sexual y la prostitución’ (2020) 59 cadernos pagu.

55 AS v Denmark (n 7) [8.7]; KK v Russian Federation (n 7) [8.6].

56 On queer challenging of international human rights law’s binaries see Kathryn McNeilly, ‘Sex/Gender Is Fluid, What Now for Feminism and International Human Rights Law? A Call to Queer the Foundations’ in Susan Harris Rimmer and Kate Ogg (eds), Research Handbook on Feminist Engagement with International Law (Edward Elgar Publishing 2019) 430, 441.

57 ON and DP v Russian Federation (n 36); Rosanna Flamer-Caldera v Sri Lanka (n 37).

58 AS v Denmark (n 37; KK v Russian Federation (n 37).

59 AS v Denmark (n 7) [1.1], [3.1], [3.2].

60 KK v Russian Federation (n 7). The analysis of this case has been presented by the author in more detail at a workshop ‘The United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and Sexual Orientation and Gender Identity’ by Ulster University and Transitional Justice Institute (2–3 June 2021). The workshop report is available at: <https://ohrh.law.ox.ac.uk/wp-content/uploads/2022/07/CEDAW-and-SOGI-Report.pdf> accessed 29 August 2022.

61 ON and DP v Russian Federation (n 37) [7.8].

62 ibid [7.9].

63 ibid [9].

64 Overview of treaty bodies’ case-law on LGBT human rights see Kseniya Kirichenko, ‘UN Treaty Bodies: SOGIESC in the UN Treaty Bodies’ Individual Cases: Analysis of Four Decades of Jurisprudence’ in Lucas Ramon Mendos, State-Sponsored Homophobia 2019 (ILGA 2019).

65 Rosanna Flamer-Caldera v Sri Lanka (n 37) [2.1].

66 ibid [9.3].

67 ibid [9.5].

68 Toonen v Australia (n 2).

69 See eg Morgan, ‘Queering International Human Rights Law’ (n 6) 220–221.

70 Toonen v Australia (n 2) [8.2]-[8.6].

71 Rosanna Flamer-Caldera v Sri Lanka (n 7) [3.5], [7.4].

72 ibid [9.2].

73 ibid [9.3].

74 ibid [9.4].

75 ibid [9.5].

76 ibid [9.6].

77 ibid [9.7].

78 See eg Kseniya A Kirichenko and Agnieszka Król, ‘Intersectionality and the CRPD: An Analysis of the CRPD Committee’s Discourse and Civil Society Advocacy at the Intersections of Disability and LGBTI’ (2022) Global Public Health 1.

79 Concluding Observations: Iran (12 April 2017) UN Doc CRPD/C/IRN/CO/1 [12], [13], [18], [19]; 2019d, paras. 20–21; Concluding Observations: Morocco (25 September 2017) UN Doc CRPD/C/MAR/CO/1 [20], [21]; Concluding Observations: Poland, (29 October 2018) UN Doc CRPD/C/POL/CO/1 [18c].

80 See eg Concluding Observations: Haiti (13 April 2018) UN Doc CRPD/C/HTI/CO/1 [7c]; Concluding Observations: Estonia (1 April 2021) UN Doc CRPD/C/EST/CO/1 [10a]; Concluding Observations: France (4 October 2021) UN Doc CRPD/C/FRA/CO/1 [10b].

81 Concluding Observations: Canada (8 May 2017) UN Doc CRPD/C/CAN/CO/1 [46].

82 On limitations of the CRPD’s stance on sexuality in general see eg Felipe Jaramillo Ruiz, ‘The Committee on the Rights of Persons with Disabilities and its take on sexuality’ (2017) 25 Reproductive Health Matters 92.

83 Concluding Observations: Australia (15 October 2019) UN Doc CRPD/C/AUS/CO/2-3 [43]–[44].

84 List of Issues: Venezuela (29 October 2019) UN Doc CRPD/C/VEN/Q/1 [25].

85 Concluding Observations: Czech Republic (11 April 2007) UN Doc CERD/C/CZE/CO/7 [18].

86 See eg Concluding Observations: Netherlands (25 September 2015) UN Doc CERD/C/NLD/CO/19-21 [26b]; Concluding Observations: Argentina (11 January 2017) UN Doc CERD/C/ARG/CO/21-23 [35], [36]; General Comment no 36 on preventing and combating racial profiling by law enforcement officials (24 November 2020) UN Doc CERD/C/GC/36 [13], [18], [47], [60].

87 Concluding Observations: Brazil (19 December 2022) UN Doc CERD/C/BRA/CO/18-20 [5], [6], [16], [17 (e)], [26], [27 (c)] and [39].

88 Concluding Observations: Bangladesh (27 April 2017) UN Doc CCPR/C/BGD/CO/1 [11e], [12e] (expressing concerns on ‘barriers to assistance in seeking employment of “hijras”, who are considered as transgender persons, by the administration of invasive and humiliating medical examinations to prove transgender status’).

89 Concluding Observations: Bangladesh (18 April 2018) UN Doc E/C.12/BGD/CO/1 [23] (‘While welcoming the legal recognition of hijras, it remains concerned that same-sex relations between consenting adults are criminalized’).

90 Concluding Observations: Senegal (13 November 2019) UN Doc E/C.12/SEN/CO/3 [39].

91 Concluding Observations: Argentina (24 May 2017) UN Doc CAT/C/ARG/CO/6 [35].

92 Kapur (n 18) 135.

93 Kathryn McNeilly (n 57) 440.