The articles presented in this Special Issue on Human Rights, Sexual Orientation, and Gender Identity are developed from papers presented at the international conference Sexual Freedom, Equality and the Right to Gender Identity as a Site of Legal and Political Struggles held in Oslo in December 2014.Footnote1 LGBTI persons, unlike people who are discriminated against on grounds like sex and gender, race and ethnicity, or disability, lack a particular international convention which obliges states to ensure that their right to equality and non-discrimination is respected, protected, and fulfilled. An overall aim of the Oslo conference was to discuss recent developments in the field of human rights protection on the right to sexual orientation and gender identity without discrimination.
This Special Issue marks the 10th anniversary of the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity. The Principles were drafted by a group of high level international experts in Yogyakarta in Indonesia in 2006 to fill the existing human rights gap. This declaration, which today constitutes an authoritative interpretation of general human rights principles, has been characterised as one of the most influential human rights documents of our time. It is against this background that this Special Issue seeks to situate the Yogyakarta Principles in a broader international and national legal landscape. A key question is how international, regional, and national law have responded to the wide range of human rights violations addressed by the Yogyakarta Principles. As regards law's growing recognition of the existing multiplicity of sexualities and gender identities a central query is whether, how, and to what extent the status quo of gender duality is reproduced.
As pointed out by Michael O' Flaherty in his article ‘The Yogyakarta Principles at Ten’, the drafters, through the Principles' definition, sought to avoid ‘sexual orientation’ and ‘gender identity’ as rigid binary categorisations. This effort, as O'Flaherty's article shows, has made its mark on the jurisprudence of a wide range of human rights treaty bodies, ranging from the Human Rights Committee, Council of Europe, the Court of Justice of the European Union, and the European Court of Human Rights, to domestic courts. The Yogyakarta Principles have, in many countries, along with other legal and political factors, led to a right to be assigned a legal gender in consonance with one's identity. Countries such as Denmark, Germany, New Zealand, Malta, India, and Nepal recognise a third gender. These Principles have, however, not been strong enough to extend the human right to marry and found a family to same-sex couples. Yet, many states like Norway and the US do, with reference to changing social and legal circumstances, recognize same-sex marriage and as such reject the dual gender orthodoxy. In many countries where legislation allows transgender people to change their legal gender, such as the UK, US, and Israel, young transgender men have been prosecuted for gender fraud in situations where their female cisgenderFootnote2 partners claimed to be unaware of their gender history. The prosecutions from the UK, which are analysed in Alex Sharpe's article ‘Sexual Intimacy, Gender Variance, and Criminal Law' were based on the assumptions that in these circumstances consent is lacking, harm is occasioned, and deception is present. Alex Sharpe discusses the imposition of a duty for transgender persons to disclose their gender identity from three legal angles. First, she questions the assumptions underlying the legal claim that non-disclosure of gender history serves to vitiate consent and cause harm. Secondly, she advances the argument that criminalisation of non-disclosure produces legal inconsistency and is potentially discriminatory. Thirdly, she argues that criminalisation is contrary to good public policy. Most importantly, Sharpe's analysis questions the underlying legal assumption that cisgender persons have a right to know and how this can be balanced against transgender persons' right to privacy and self-defined agency.
Human rights jurisprudence related to sexual orientation and gender identity has by and large been moulded on the experiences of adults. The Convention on the Rights of the Child (CRC) has been, as shown in Kirsten Sandberg's article in this issue, at the forefront in developing a human rights discourse that addresses the complex social and legal issues faced by children with a different sexual orientation or gender identity, and their parents, encountered at birth, during childhood and adolescence. The CRC Committee has recently taken the position that the medical practice of conducting genital surgery on children born with unclear genitals in order to have them labelled as boys or girls, often termed ‘intersex genital mutilations’, can be viewed as a harmful practice. The Committee emphasises the need for counselling and support to enable intersex children to live with their condition until they are able to make a decision themselves. In the article ‘Legal Gender Meets Reality: A Socio-Legal Children's Rights Perspective’, Anniken Sørlie provides an empirical case study from Norway. Through narratives she demonstrates how the legal gender assigned at birth impacts on gender non-confirming children's and adolescents' feeling of recognition, self-confidence, self-respect, and self-esteem in the private, social and legal spheres. Sørlie's analysis of how the Norwegian regulation of the assignment of gender and gender change, which is confined to the binary male/female dichotomy, leads to misrecognition in institutions like the family, the school, and social community where children grow up, is compelling reading. In the light of different children's experiences of misrecognition, she discusses different alternatives such as the recognition and introduction of a third gender, or the introduction of gender-neutral national identity numbers and identity documents.
The jurisprudence of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is analysed by Rikki Holtmaat and Paul Post. The text of CEDAW, particularly article 5(a) and (f), places a duty on state parties to take steps to eliminate or modify gender stereotypes. Against this background, the authors discuss whether CEDAW, in the light of its main purpose, to combat discrimination against women, the legal potential to promote LGBTI rights. The authors argue that the Convention, in spite of its asymmetrical approach in addressing women, obliges states to enhance de facto equality of women by means of measures that eradicate the social, cultural, and religious structures that cause women's oppression, most importantly gender stereotypes that create, uphold, and reproduce the binary gender orthodoxy. Their study shows that CEDAW's commitment, with the exception of two General Recommendations that briefly mention sexual orientation and gender identity, remains limited to Concluding Observations to state reports. Emphasising the instrumentality of shadow reports for the work of the Committee, the authors call for contributions from civil society that document how discrimination of LGBTI persons is structurally connected to discrimination against women. Such a step-by-step approach may gradually lead to greater recognition by the CEDAW Committee that there is a crucial connection between discrimination against women and LGBTI persons.
Dianne Otto's article, ‘Queering Gender [Identity] in International Law’, offers a critical perspective on both the Yogyakarta Principles and CEDAW's definitions of gender identity. By associating gender identity with a ‘deeply felt’ individual destiny, the Yogyakarta Principles, Otto points out, exclude those who experience their gender as shifting or multiple, as well as those who identify some combination of blurring identities. This narrow approach, from the perspective of gender identity as a performative, fluid, flexible, and shifting category, re-naturalises the gender binary. Of the seven General Recommendations adopted by the CEDAW Committee since 2007, Otto observes that only two make reference to sexual orientation and gender identity. Seeing gender identity as an additional category in terms of intersectional discrimination, which can intensify discrimination against women, the Committee in effect precludes the insight that sex/gender/gender identity are all given substance by the same matrix of gendered social relations. To realise the transformative potential of article 5(a) and (f) of CEDAW, Otto concludes that the CEDAW Committee needs to entirely replace a (bio)logic conception with a performative conception of sex.
All in all, this Special Issue attempts to widen the perspective of the needs of different groups who experience gender harm due to the narrow binary conception of sexuality and gender identity. The issue hopes to contribute to the discussion on how these groups can take joint steps to realise the transformative potential of international human rights law.
Notes
1The conference was organised by the research group ‘Individuals, Rights, Culture and Society’ (RICS) and the Institute of Women's Law, Child Law and Discrimination Law at the Department of Public and International Law at the Faculty of Law, University of Oslo in cooperation with the Equality and Anti-discrimination Ombud of Norway. The conference was part of the research project Gender Identity and Sexual Orientation in International and National (Norwegian Law) led by the Guest Editor and funded by the Research Council of Norway under the FRISAM programme.
2Cisgender is a concept that is used to refer to people who are comfortable with gender expectations and practices that follow normatively from sex designation.