Why the U.N. Needs a Broad Concept of Gender to Ensure Universal Protection of Human Rights
Current discussions at the Human Rights Council (HRC) addressing sexual orientation and gender identity and expression (SOGI/E) raise questions about how the concept of gender identity is to be understood. We are committed to promoting universality and to ensuring that no experience of gender-based human rights violations is neglected. Groups working at the intersections between gender and rights, including those concerned with intersex, trans*, gay, lesbian and women’s rights, have experience, knowledge, analytic frames and documentation of gendered human rights violations which all need to inform the HRC’s work on gender identity and expression. It is essential to adopt such an inclusive approach to gender, in order to minimize protection gaps and enable human rights developments that are responsive to the full range of gender-based human rights abuses.
Key Recommendations
- The concept of gender, including how people come to have gendered identities, must be understood as pertaining to everyone and applied so as to identify all forms of gender-related violence and discrimination.
- Measures to address human rights violations based on gender identity and expression must connect with and build on both feminist and LGBTI understandings of gender as embodied, as well as socially created and relational, and recognize that gender systems link with but are distinct from systems that organize sexuality and sexual orientation.
- Every individual’s gender self-determination must be valued and recognized, free from coercion, violence and discrimination. The capacity for self-determination needs to be located and examined within its social context, so that social constraints and limits can also be identified and addressed.
- Many different groups working at the intersections between gender and rights should be invited to collaborate to inform all HRC protection work concerning gender, including its Regular and Special Sessions, Special Procedures, Universal Periodic Review and Petition Procedures.
In presenting these recommendations, we stress the importance of taking an intersectional approach in the HRC’s human rights work on gender. Gender discrimination works together with other vectors of discrimination, including those based on race, age, sexual orientation, citizenship, religious belief, ethnic identity and (dis)ability. Our goal is to expose the operation of gender for all, in order to ensure everyone’s equal enjoyment of rights, with particular attention to and protection for trans* and intersex voices and experiences which have been neglected in the past, in addition to women’s rights which have proved to be so difficult to achieve.
Rationale and Implications
1. The concept of gender, including how people come to have gendered identities, must be understood as pertaining to everyone and applied so as to identify all forms of gender-related violence and discrimination.
Everyone is subject to the gender stereotypes that are culturally and socially dominant in their particular context. This means that everyone has a gender identity, including those who identify as women, men, trans*, third gender, intersex and gender non-specific. Both privileged and marginalized subjects of rights have genders, just as everyone has a race. .
It is important that the HRC’s efforts to address gendered human rights abuses recognize that the gender identities/expressions that are conventionally regarded as fixed and those that are treated as variable are nonetheless equally culturally determined. State obligations to eliminate harmful gender stereotypes require changing the systems that privilege certain gender identities, as well as promoting the full humanity of stigmatized gender identities/expressions. For example, gendered violence in all its forms needs to be eliminated: persons conventionally deemed ‘women’ (as with conventionally deemed ‘men’) are often disciplined to remain in their culturally assigned gender roles (e.g. through gendered violence in the home) and disciplined if they attempt to step outside (e.g. violence against those transgressing gender rules, whether through refusal to marry, assumption of a lesbian identity, or claiming of a trans* identity).
While the specifics of the human rights violations suffered by marginalized gender identities must be directly and immediately addressed, clear links must be made between these violations and the mainstream institutions, practices and customs that reinforce generally applicable gender stereotypes,, in order to ensure equal enjoyment of human rights for all.
2. Measures to address human rights violations based on gender identity and expression must connect with and build on both feminist and LGBTI understandings of gender as embodied, as well as socially created and relational, and recognize that gender systems link with but are distinct from systems that organize sexuality and sexual orientation.
We are concerned that the concept of gender used in recent SOGI/E work has neglected the critical engagement with the social and cultural aspects of gender that have underpinned rights-based feminist efforts to eliminate stereotyped and unequal gender. Consequently, we urge that all HRC procedures, including any SOGI/E mechanism, adopt a broad and open-ended concept of gender that recognizes that it is embodied within a social and relational context, and therefore engages with those contexts.. This will also enable the identification of gendered human rights abuses that are not wholly intelligible within a specific identity framework. While individuals must be able to claim formal recognition of their deeply felt individual experience of gender identity and expression, a universal, rights-based analysis of gender should also focus on the institutions, practices and ideologies that constrain gender and seek to determine its meaning for all individuals.
In this regard, careful attention to the fact that gender and sexual systems are linked, but not identical, systems of personal and social relations is key. In practice, this means not confusing the gender expression of an individual with their sexual partner choice: effeminate men can be heterosexual, transwomen can have heterosexual or homosexual orientations, and lesbians can look conventionally feminine. This matters for rights work in many ways. Therefore, work to end restrictions on sexual behavior (including same sex behavior) is not identical to the legal and policy changes needed to defend various gendered behaviours and identities, and documentation of harms to one set of persons does not stand in or replace attention to the specific harms and rights claims of others.
3. Every individual’s gender self-determination must be valued and recognized, free from coercion, violence and discrimination. The capacity for self-determination needs to be located and examined within its social context, so that social constraints and limits can also be identified and addressed.
The HRC’s work on gender needs to promote and protect gender self-determination, including decisions around formal identity recognition. However, this capacity for self-determination needs to be located and examined within its social context, so that social constraints and limits can also be identified and addressed. This means that human rights work needs not only to promote self-determination, but also promote social change that expands the space of freedom for self-determination. In practice, this means significant attention to, and documentation of, the economic, social, political and cultural conditions that promote or constrain gender identities. No one forms or maintains their gender in isolation—all human rights mechanisms must be able to address the institutions and material conditions that present barriers to individuals freely determining their gender expression and identity, and document abuses and obstacles connected to the practices of both state and non-state actors.
4. Many different groups working at the intersections between gender and rights should be invited to collaborate to inform all HRC protection work concerning gender, including its Regular and Special Sessions, Special Procedures, Universal Periodic Review and Petition Procedures.
Future human rights work on gender needs to be conceived in terms that are sufficiently broad, conceptually informed, and rooted in actual lived experiences, to minimize protection gaps and to reflect the rich understandings of gender that social movements, human rights defenders and scholars alike have documented and articulated. Therefore, many different groups working at the intersections between gender and rights need to be invited to contribute to the HRC’s work on gender, especially LGBTI and feminist social movements. This inclusive approach to gender will support more effective and inclusive gender work which will substantially advance the UN Charter’s promise of promoting human rights and fundamental freedoms for all.
The situation is urgent. As reported by the UNOHCHR in the 2015 report to the HRC on discrimination and violence against individuals based on their sexual orientation and gender identity, gender-based violence driven by a desire to punish individuals whose appearance or behaviour appears to challenge gender stereotypes, occurs in every region. Such violence may be physical (including murder, beatings, kidnapping and sexual assault) or psychological (including threats, coercion and the arbitrary deprivation of liberty, including forced psychiatric incarceration).[1] The report refers to the murder of transsexual women in Uruguay,[2] the killing of Black lesbian women in South Africa,[3] the videotaped beatings of gay men kidnapped by neo-Nazi groups,[4] and the findings of the Trans Murder Monitoring project (which collects reports of homicides of transgender persons in all regions) which lists 1,612 murders in 62 countries between 2008 and 2014, equivalent to a killing every two days.[5] These horrific abuses are just the tip of a huge iceberg of gendered human rights violations which, when added to those documented by the Special Rapporteur on Violence against Women since 1994[6], by the recent, gender-based violence focused report of the Special Rapporteur on Torture and Cruel, Inhuman and Degrading Treatment[7], and by the many other HRC procedures addressing gender, demands a determined, coordinated and fully inclusive response from the HRC.
June 2016
Supported by:
Alice M. Miller, JD, *Co-Director, Global Health Justice Partnership of the Yale Law School and School of Public Health, Yale University (USA)
Dianne Otto, *Francine V McNiff Chair in Human Rights Law at the University of Melbourne (Australia)
Violeta Neubauer, former CEDAW Committee Member (Slovenia)
Charlotte Bunch, Feminist Human Rights Advocate, Founding Director and Senior Scholar, Center for Women’s Global Leadership, Distinguished Professor in Women’s and Gender Studies, Rutgers University (USA)
Geetanjali Misra, Executive Director, CREA (India)
Paisley Currah, Professor, Political Science, Brooklyn College and founding co-editor of TSQ: Transgender Studies Quarterly (USA)
Alda Facio, Vice-Chairperson, UN Working Group on Discrimination against women in law and in practice
Scott Long, PhD, Independent scholar/advocate and Founding Director of LGBT division at HRW
* Affiliation are for identification purposes only.
[1] A/HRC/29/23, para. 21.
[2] CCPR/C/URY/CO/5, para. 12.
[3] A/HRC/20/16, paras. 55, 73, CERD/C/GC/34, para. 23.
[4] A/HRC/26/50, para. 14.
[5] Trans Murder Monitoring results update, November 2014 (available at http://tgeu.org/tmm/).
[6] http://www.ohchr.org/EN/Issues/Women/SRWomen/Pages/SRWomenIndex.aspx.
[7] A/HRC/31/57.