The ‘Half-Invention’ of Gender Identity in International Human Rights Law: from Cedaw to the Yogyakarta Principles

Abstract

This article explores the invention of ‘gender identity’ in international human rights law. It examines the discursive production of the marginalized sexual subjects of human rights law in order to reveal the restrictive binaries and categories on which the international legal framework relies to articulate rights. With a particular focus on CEDAW and the Yogyakarta Principles, the article applies an anti-identitarian critique to the categories of ‘women’ and ‘gender identity.’ It is argued that the ‘half-invention’ of the category of ‘gender identity’ may unwittingly subject people of diverse gender identities to the discursive production of fixed identities instead of their own conceptions of blurred identification. Finally, this article weighs the importance of a pragmatic approach to the goal of establishing sex and gender human rights in the legally binding instruments of international human rights law.

What is an invention? What does it do? It finds something for the first time.

Because there is neither an “essence” that gender expresses or externalizes nor an objective ideal to which gender aspires; because gender is not a fact, the various acts of gender creates the idea of gender, and without those acts, there would be no gender at all. Gender is, thus, a construction that regularly conceals its genesis.