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ABSTRACT
In a growing number of countries, developments in domestic law concerning transgendered people are moving towards a more social approach to recognising and regulating gendered bodies. International developments – illustrated here by the Yogyakarta Principles - appear to be taking a different course in which (bio)logic and heteronormative family forms are uncritically embraced. This article provides examples from the Committee on the Elimination of Discrimination against Women which illustrate a reluctance to fully pursue the opportunities opened by new understandings of sex/gender and the related unwillingness to address gendered discrimination suffered by men and other genders. To counter the reinstatement of biology as foundational in gender, the article argues for more feminist and queer coalitional work and the adoption of a performative understanding of ‘sex’. A more liberatory and inclusive conception of gender should be pursued, without obscuring the specificity and diversity of the human rights abuses felt by those who are, or who are perceived as, transgendered.
Notes
1‘Here Are All the Different Genders You Can Be on Facebook’, Future Tense: The Citizen's Guide to the Future (New York, 13 February 2014) http://www.slate.com/blogs/future_tense/2014/02/13/facebook_custom_gender_options_here_are_all_56_custom_options.html. The gender identity choices are not provided as a full list, but a drop-down menu of options is provided once you type the first letter into an empty text field. Interestingly, there is no option to craft your own gender identity if it is not on the list, nor can you leave the field blank.
2See ‘Wild Quiz: What's your Gender Identity’, at UnBoxifyMe, http://unboxifyme.com/wild-quiz-whats-your-gender-identity/.
3‘Cisgender’ refers to those whose sex assignment at birth conforms to their self-identity as a man or woman. The term is often used to mean the opposite of ‘transgender’. See, for example, Paula Blank, ‘Will “Cisgender” Survive?’ The Atlantic (Washington, 24 September 2014) http://www.theatlantic.com/entertainment/archive/2014/09/cisgenders-linguistic-uphill-battle/380342/. However, this understanding relies on a separation of body and mind, which is inconsistent with performative understandings of gender, and continues to treat gender as a binary system, rather than as plurality and fluidity. Thanks to an anonymous reviewer for drawing my attention to this important point.
4See further, ‘The International Bill of Gender Rights’, as adopted at the International Conference on Transgender Law and Employment Policy (ICTLEP), Houston, Texas, 17 June 1995, http://www.transgenderlegal.com/ibgr.htm.
5My use of the square brackets signals a challenge to those who would distinguish ‘gender’ from ‘gender identity’ – something that I shall later explain in more detail. The separation between feminist and queer work is also of concern in advocacy for sexuality rights. See Dianne Otto, ‘Between Pleasure and Danger: Lesbian Human Rights’ (2014) European Human Rights L Rev 618.
6See, for example, Commission on Human Rights, ‘Report of the Expert Group Meeting on the Development of Guidelines for the Integration of Gender Perspectives into United Nations Human Rights Activities and Programmes’, UN Doc E/CN.4/1996/105 (20 November 1995) Annex [13]: ‘The term “gender” refers to the ways in which roles, attitudes, values and relationships regarding women and men are constructed by all societies all over the world . . . while the sex of a person is determined by nature, the gender of that person is socially constructed’.
7Judith Butler, ‘Gender Regulations’ in Undoing Gender (Routledge, 2004) 40–42.
8See Andrew N Sharpe, Transgender Jurisprudence: Dysohoric Bodies of Law (2nd edn, Routledge-Cavendish, 2006) 9. For common law systems, the (bio)logic approach was set out by Ormond J of the former English Probate Division in Corbett v Corbett [1971] 2 All ER 33. He held that, in the context of marriage, sex is a biological matter determined at birth by chromosomes, gonads and genitals. This approach was confirmed by the House of Lords as recently as 2003 in Bellinger v Bellinger [2003] 2 AC 467, 473.
9See, for example, AB v Western Australia (2011) 244 CLR 390, where the High Court of Australia interpreted legislation regulating when sex recorded on a birth certificate could be changed, to depend on external rather than internal physical characteristics (genital surgery was not a requirement) and on identification as such by ‘other members of society’.
10‘Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity’ (International Commission of Jurists, 2007) (Yogyakarta Principles).
11For a persuasive development of this position see Margaret Davies, ‘Taking the Inside Out: Sex and Gender in the Legal Subject’ in Ngaire Naffine and Rosemary J Owens (eds), Sexing the Subject of Law (North Ryde, LBC Information Service and Sweet and Maxwell 1997) 25.
12Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge 1990) 25.
13My thanks to Janet Halley who adopted these abbreviated forms to describe current US feminist projects. Janet Halley, Split Decisions: How and Why to Take a Break from Feminism (Princeton University Press, 2006) 17–18.
14Brussels Declaration Concerning the Laws and Customs of War 1874 art XXXVIII; Manual of the Laws and Customs of War on Land 1880 art 49; Convention Respecting the Laws and Customs of War on Land 1899, 32 Stat 1803 art XLVI; Convention Respecting the Laws and Customs of War on Land 1907 (entered into force 26 January 1910) 36 Stat 2277 art XLVI.
15See, for example, Sara Ruddick, Maternal Thinking: Towards a Politics of Peace (Boston: Beacon Press 1989).
16Dianne Otto, ‘International Human Rights Law: Towards Rethinking Sex/Gender Dualism’ in Margaret Davies and Vanessa Munro (eds), A Research Companion to Feminist Legal Theory (Ashgate Companion Series, 2013) 19.
17Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW).
18For discussion, see Darren Rosenblum, ‘Unsex CEDAW, or What's Wrong with Women's Rights' (2011) 20(2) Columbia J of Gender and L 98.
19Ratna Kapur, ‘The Tragedy of Victimisation Rhetoric: Resurrecting the “Native” Subject in International/Postcolonial Feminist Legal Politics’ (2001) 10 Columbia J of Gender and L 333.
20Sharpe (n 8), 58–75.
21CEDAW (n 17), preamble [14].
22Surya Monro, ‘Transgender: Destabilising Feminisms?’ in Vanessa Munro and Carl F Stychin (eds), Sexuality and the Law: Feminist Engagements (Routledge-Cavendish, 2007) 125.
23Rikki Holtmaat, ‘The CEDAW: a Holistic Approach to Women's Equality and Freedom’ in Anne Hellum and Henriette Sinding Aasen (eds), Women's Human Rights: CEDAW in International, Regional and National Law (Cambridge University Press, 2013) 95, 115–116.
24Dianne Otto, ‘Holding Up Half the Sky but for Whose Benefit? A Critical Analysis of the Fourth World Conference on Women' (1996) 6 Australian Feminist LJ 7, 11–12.
25See, for example, the Final Statement of the Holy See made at the Concluding Ceremony of the Fourth World Conference on Women; ‘The term “gender” is understood by the Holy See as grounded in biological sexual identity, male or female’: Holy See (Fourth World Conference on Women, Beijing, 15 September 1995) http://www.its.caltech.edu/~nmcenter/women-cp/beijing3.html. See also Vanja Hamzic, ‘The Case of “Queer Muslims”: Sexual Orientation and Gender Identity in International Human Rights Law and Muslim Legal and Social Ethos’ (2011) 11/2 Human Rights L Rev 237, 245–247.
26Otto (n 24).
27Commission on Human Rights (n 6). More recently, see ‘UNESCO's Gender Mainstreaming Implementation Framework (GMIF) for 2002–2007’ (UNESCO, 2003) annex 2: baseline definitions of key concepts and terms, 17 http://unesdoc.unesco.org/images/0013/001318/131854e.pdf.
28Wendy O'Brien, ‘Can International Human Rights Law Accommodate Bodily Diversity?’ (2015) 15 Human Rights L Rev 1, 2.
29‘Report of the Sixth Meeting of Persons Chairing the Human Rights Treaty Bodies’ (4 October 1995) UN Doc A/50/505 [34] (a)–(f).
30International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).
31Human Rights Committee, ‘General Comment 28: Article 3 (The equality of rights between men and women)’ (2000) UN Doc HRI/GEN/1/Rev.9 (Vol I) 228 [11].
32Ibid [10].
33International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 999 UNTS 3 (ICESCR).
34Committee on Economic, Social and Cultural Rights, ‘General Comment 16: The Equal Right of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights (Art. 3 of the Covenant)’ (2005) UN Doc E/C.12/2005/4 [26]. Note, unlike CEDAW, the wording of ICESCR does not limit its prohibition of sex discrimination to discrimination against women.
35Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT).
36Committee Against Torture, ‘General Comment 2: Implementation of Article 2 by State Parties’ (2007) UN Doc HRI/GEN/1/Rev.9 (Vol II) 376 (27 May 2008) [22].
37Ibid.
38Titia Loenen, ‘Rethinking Sex Equality as a Human Right’ (1994) 12 Netherlands Quarterly of Human Rights 253; Bertha Esperanza Hernandez-Truyol, ‘Unsex CEDAW? No! Super-Sex It!’ (2011) 20 Columbia J of Gender and L 195; Nalini Persram, ‘Politicizing the Feminine, Globalizing the Feminist’ (1994) 19 Alternatives 285, 287.
39Sally Baden and Anne Marie Goetz, ‘Who Needs [Sex] When You Can Have [Gender]? Conflicting Discourses on Gender at Beijing’, in Cecile Jackson and Ruth Pearson eds, Feminist Visions of Development: Gender Analysis and Policy (1998) 19.
40Alice M Miller, ‘Sexuality, Violence Against Women, and Human Rights: Women Make Demands and Ladies Get Protection’ (2004) 7 Health and Human Rights 17, 36–39; Cynthia Rothschild et al, Written Out: How Sexuality is Used to Attack Women's Organizing (rev edn, IGLHRC and CWGL, 2005).
41IGLHRC, Equal and Indivisible: Crafting Inclusive Shadow Reports for CEDAW (IGLHRC 2008) 3, http://www.iglhrc.org/sites/default/files/287-1.pdf. The authors acknowledge that many feminists and queer theorists have moved away from the sex/gender binary arguing they are both given meaning socially, but maintain that for pragmatic reasons, in work with CEDAW, the binary remains useful.
42See for example, Halley (n 13), who suggests the need to ‘take a break’ from feminism in order to see important dimensions of sexuality that feminism does not make visible. The same argument can be made with regard to feminist myopia about the links between their struggles for women's rights and the human rights struggles of other gender identities.
43Dianne Otto, ‘The Exile of Inclusion: Reflections on Gender Issues in International Law over the Last Decade’ (2009) 10 Melbourne J of Int L 11.
44Michel Foucault, Graham Burchell, Colin Gordon and Peter Miller. The Foucault Effect: Studies in Governmentality (University of Chicago Press, 1991).
45See, for example, Committee on the Elimination of Discrimination Against Women, ‘Concluding Observations: Bosnia and Herzegovina’ (30 July 2013) UN Doc CEDAW/C/BIH/CO/4-5 [4(a)], where anti-discrimination legislation that includes ‘sexual expression’ and ‘sexual orientation’ as prohibited grounds of discrimination is welcomed; and Committee on the Elimination of Discrimination Against Women, ‘Concluding Observations: Chile’ (12 November 2012) UN Doc CEDAW/C/CHL/CO/5-6 [46], where it is ‘noted’ that ‘a bill on de facto unions, which includes same-sex relationships, is before the Senate’.
46Guidelines were developed in 2008 by the International Gay and Lesbian Human Rights Commission (IGLHRC), to help NGOs prepare shadow reports for the CEDAW Committee, which include human rights issues related to sexual orientation, gender identity and gender expression. See IGLHRC (n 41).
47These references can be grouped into five main areas of concern: violence against women, health issues, failure to prohibit discrimination, harmful stereotypes, and particularly disadvantaged or vulnerable women.
48Committee on the Elimination of Discrimination Against Women, ‘Concluding Observations: Sri Lanka’ (8 April 2011) UN Doc CEDAW/C/LKA/CO/7 [24].
49Mindy Jane Roseman and Alice M Miller, ‘Normalizing Sex and its Discontents: Establishing Sexual Rights in International Law’ (2011) 34 Harvard J of L and Gender 313, 353.
50Comments made by Violetta Neubauer (Slovenia), former member of the CEDAW Committee (Sexual Freedom, Equality and Rights to Gender Identity Conference, Oslo, 11–12 December 2014) (notes on file with author).
51Jenna McGill, ‘SOGI . . . So What? Sexual Orientation, Gender Identity and Human Rights Discourse at the United Nations’ (2014) 3/1 Canadian J of Human Rights 1, 23–25.
52Concluding Observations of the Committee on the Elimination of Discrimination against Women: Finland (10 March 2014) UN Doc CEDAW/W/C/FIN/CO/7 [28]; Concluding Observations of the Committee on the Elimination of Discrimination against Women: The Netherlands (5 February 2010) UN Doc CEDAW/C/NLD/CO/5, [46]–[47], also expressing concern about the non-reimbursement by health insurance of the cost of surgical breast implants.
53Concluding Observations of the Committee on the Elimination of Discrimination against Women: Norway (23 March 2012) UN Doc CEDAW/C/NOR/CO/8 [35].
54Grace Poore, ‘30 Years of CEDAW: Achievements and Continuing Challenges Towards the Realization of Women's Human Rights’, International Gay and Lesbian Human Rights Commission (3 September 2009) http://iglhrc.org/content/30-years-cedaw-achievements-continuing-challenges-towards-realization-women%E2%80%99s-human-rights.
55Committee on the Elimination of Discrimination Against Women, ‘General Recommendation 28: The Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women’ (16 December 2010) UN Doc CEDAW/C/GC/28 [5].
56Ibid.
57Committee on the Elimination of Discrimination Against Women, ‘General Recommendation 27: Older Women and Protection of Their Human Rights’ (16 December 2010) UN Doc CEDAW/C/GC/27 [13]; ‘General Recommendation 28’, (n 55) [18].
58Butler (n 7).
59Brenda Cossman, ‘Gender Performance, Sexual Subjects and International Law’ (2002) 15 Canadian J of L and Jurisprudence 281, 289.
60‘Report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, UN General Assembly' (3 July 2001) UN Doc A/56/156[17], concerned that transgendered people are ‘often subjected to violence . . . in order to “punish” them for transgressing gender barriers or for challenging predominant conceptions of gender roles’.
61‘Report of the Special Rapporteur on extrajudicial, arbitrary and summary executions’ (2001) UN Doc E/CN.4/2001/9 [50], condemning threats against LGBT defenders.
62See ‘Report of the Special Representative of the Secretary General on the situation of human rights defenders’ (22 March 2006) UN Doc E/CN.4/2006/95/Add.1 [290], highlighting particular dangers faced by human rights defenders ‘associated with lesbian, gay, transgendered, bisexual and HIV-Aids issues in Jamaica’; ‘Report of the Special Rapporteur on the right of everyone to the highest attainable standard of physical and mental health’ (16 February 2004) UN Doc E/CN.4/2004/49 [33], [38], [39], expressing concern about violence, discrimination and stigma that threatens the sexual and reproductive health of sexual minorities, making specific reference to ‘men who have sex with men, lesbians, and transgendered and bisexual people’; ‘Report of the Independent Expert on minority issues’ (6 January 2004) UN Doc E/CN.4/2006/74 [28], [42], drawing attention to ‘multiple forms of exclusion’ of members of minority communities, including on the basis of ‘sexual orientation or gender expression that challenges social or cultural norms’.
63Amnesty International, ‘Crimes of Hate, Conspiracy of Silence. Torture and Ill-treatment Based on Sexual Identity’ (AI Index ACT 40/016/2001, Amnesty International 2001); Human Rights Watch (HRW), ‘In A Time of Torture: The Assault on Justice in Egypt's Crack-down on Homosexual Conduct’ (HRW 2004); Human Rights Watch, ‘Hated to Death: Homophobia, Violence and Jamaica's HIV/AIDS Epidemic’ (HRW 2004); Human Rights Watch, ‘More than a Name: State-Sponsored Homophobia and its Consequences in South Africa’ (HRW 2003).
64‘Report of the Special Rapporteur on the situation of human rights defenders’ UN Doc A/HRC/13/22 (30 December 2009) [49].
65Conversation with Cynthia Rothschild, New York, 24 October 2014 (notes on file with author). See further, Dodo Karsay ‘How far has SIGII advocacy come at the UN and where is it heading? Assessing sexual orientation, gender identity, and intersex activism and key developments at the UN 2003–2014’ (ARC International 2014) http://arc-international.net/wp-content/uploads/2013/09/How-far-has-SOGII-for-web.pdf.
66Office of the High Commissioner for Human Rights, Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law HR/PUB/12/06 (UN, New York and Geneva 2012) http://www.ohchr.org/documents/publications/bornfreeandequallowres.pdf.
67Free and Equal, Press Release, ‘UN Human Rights Office Launches Unprecedented Global Campaign for Lesbian, Gay, Bisexual and Transgender Equality’ (Cape Town, 26 July 2013) http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13583.
68World Bank Panel, ‘Addressing Exclusion Based on Sexual Orientation and Gender Identity’, 20 May 2015, http://www.worldbank.org/en/events/2015/05/18/addressing-exclusion-based-on-sexual-orientation-and-gender-identity.
69Dianne Otto, ‘Transnational Homo-Assemblages: Reading “Gender” in Counter-terrorism Discourses’ (2013) 4(2) Jindal Global Law Review, Special Double Issue – Part II: Law, Culture and Queer Politics in Neoliberal Times 79.
70Human Rights Council, ‘Joint Statement on Human Rights Violations based on Sexual Orientation and Gender Identity’, delivered by H E Wegger Chr Strommen (Norway), (3rd Session, 1 December 2006).
71Joint Statement read by Argentina in the General Assembly on behalf of 66 states, ‘Human rights, sexual orientation and gender identity’, 18 December 2008, http://arc-international.net/global-advocacy/sogi-statements/2008-joint-statement/.
72Statement read by Syria in the General Assembly on behalf of 57 states, predominantly Organization of Islamic Conference members, ‘Human rights and the so-called notions of “sexual orientation” and “gender identity”’, 18 December 2008, http://iglhrc.org/content/united-nations-general-assembly-statement-affirming-human-rights-protections-include-sexual. The Statement argues there is ‘no legal foundation’ for the notions of ‘sexual orientation’ and ‘gender identity’ and asserts the right of states to enact laws that meet ‘just requirements of morality, public order, and the general welfare in a democratic society’
73Human Rights Council, ‘Human rights, sexual orientation and gender identity’, UN Doc A/HRC/RES/17/19 (15 June 2011), adopted 23/19 with 3 abstentions.
74‘Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity', UN Doc A/HRC/19/41 (17 November 2011).
75Human Rights Council, ‘Human rights, sexual orientation and gender identity’, UN Doc A/HRC/27/32 (26 September 2014).
76Proposed amendments to draft resolution UN Doc A/HRC/27/L.27/Rev.1: UN Doc A/HRC/27/L.45 (25 September 2014), UN Doc A/HRC/27/L.46 (25 September 2014), UN Doc A/HRC/27/L.47 (25 September 2014), UN Doc A/HRC/27/L.48 (25 September 2014), UN Doc A/HRC/27/L.49 (25 September 2014), UN Doc A/HRC/27/L.50 (25 September 2014), UN Doc A/HRC/27/L.51 (25 September 2014).
77Report of the Office of the United Nations High Commissioner for Human Rights, ‘Discrimination and violence against individuals based on their sexual orientation and gender identity’, UN Doc A/HRC/29/23, para 6 (4 May 2015).
78‘Yogyakarta Principles (n 10).
79Michael O'Flaherty and John Fisher, ‘Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles’ (2008) 8(2) Human Rights Law Review 207.
80Yogyakarta Principles (n 10), introduction [7].
81Ibid, preamble [9].
82Ibid, preamble [5].
83Aeyal Gross raises similar concerns about the notion of ‘sexual orientation’. See Aeyal Gross, ‘Queer Theory and International Human Rights Law: Does Each Person have a Sexual Orientation?’ [2007] Proceedings of the American Society of International Law 129.
84Matthew Waites, ‘Critique of “sexual orientation” and “gender identity” in human rights discourse: global queer politics beyond the Yogyakarta Principles’ (2009) 15/1 Contemporary Politics 137, 147.
85Commission on Human Rights (n 6).
86Yogyakarta Principles (n 10), P 2.
87 Sheridan v Sanctuary Investments Ltd (No 3) (1999) 33 CHRR D/467.
88Ibid [93]. quoted in Sharon Cowan, ‘”Gender is no Substitute for Sex”: A Comparative Human Rights Analysis of the Legal Regulation of Sexual Identity’ (2005) 13 Feminist Legal Studies 67, 82–83.
89Wayne Morgan, ‘Queering International Human Rights Law’ in Carl Stychin and Didi Herman (eds), Sexuality in the Legal Arena (Athlone Press, 2000) 208.
90Yogyakarta Principles (n 10), P 24.
91Ibid, A–G.
92Butler (n 12), 5.
93Waites (n 84), 139.
94Tom Dreyfus, ‘The “Half-Invention” of Gender Identity in International Human Rights Law: From CEDAW to the Yogyakarta Principles’ (2012) 37 Australian Feminist L J 33, 48.
95Roseman and Miller (n 49), 362.
96‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’, UN Doc A/64/211, sect III (3 August 2009).
97Ibid [21]. In addition to the Yogyakarta Principles, the Special Rapporteur cites the UNHCR ‘Guidelines on International Protection No 1: Gender-Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees’ (7 May 2002) UN Doc HCR/GIP/02/01; Committee on the Elimination of Discrimination Against Women ‘General Recommendation No 25’ (2004) UN Doc A/59/38 (Supp.) annex 1; UN Committee on Economic, Social and Cultural Rights, ‘General Comment No 20: Non-discrimination in economic, social and cultural rights’ (2009) UN Doc E/C.12/GC/20 [32].
98Ibid [20]. See further summary and [52] (conclusions).
99Ibid [20].
100Ibid, for example, checkpoint delays which have increased the risks associated with childbirth for Palestinian women and the impact of counter-terrorism measures on the economic, social and cultural rights of Chechnyan women: Report of the Special Rapporteur 2009 [18]; the targeting of women for attack and repression by many groups involved in conflict as in Iraq [23]; the risks to the security and liberty of women related to male terrorism suspects as in Uganda [31]; and the penalisation of women who wear particular forms of religious clothing as in the Maldives and parts of Europe [38].
101Ibid, for example, he condemns vague definitions of ‘terrorism’ that have justified measures that target those individuals who do not conform to traditional gender roles, such as attacks on meti (effeminate males or transgendered people) in Nepal, ibid [23]; and the arrests and persecution of ‘suspected homosexuals’ in Egypt [27].
102Ibid, for example, the use of gender stereotypes in profiling male terrorist suspects, ibid [37]; and the use of gender-specific interrogation techniques which exploit perceptions of Muslim men's homophobia and seek to induce feelings of emasculation [44].
103Ibid [36].
104Ibid [48].
105Ibid [27].
106Simone de Beauvoir, The Second Sex (H M Parshley ed and tr, Vintage Books 1974) 295.
107Butler (n 12), 140–141.
108See further, Otto, n 69.
109Dianne Otto, ‘Sexualities and Solidarities: Some Thoughts on Coalitional Strategies in the Context of International Law’ (1999) 8 Australasian Gay and Lesbian L J 27.