Contested Subjects of Human Rights: Trans‐ and Gender‐variant Subjects of International Human Rights Law

Sandra Duffy

doi:10.1111/1468-2230.12633

Abstract

AbstractGendered identities and gender variance have become a regular subject of the discourse of the United Nations human rights protection mechanisms. This article explores the manner in which gender identities are discussed, constructed, and regulated by the international human rights law system. Through use of postcolonial and feminist theoretical lenses, it argues that the emergence of multiple gendered identities into the legal mainstream has required the United Nations human rights bodies to expand their concepts of gender and to develop a new vocabulary and jurisprudence of gender variance. The article examines the language used in the construction of gendered subjects and its relationship to dynamics of state and postcolonial power. It also introduces the concept of the ‘cisgender matrix’ to international human rights law, expressing the hierarchical social privilege given to binary, stable gendered identities over gender‐variant ones.

Highlights

Rights LawGendered identities and gender variance have become a regular subject of the discourse of the United Nations human rights protection mechanisms
In 2018, the United Nations Independent Expert on Sexual Orientation and Gender Identity issued a report on the human rights of gender-diverse communities and persons, stating that, ‘[s]elf-determined gender is a fundamental part of a person’s free and autonomous choice in relation to roles, feelings, forms of expression and behaviours, and a cornerstone of the person’s identity.’[1]. The Independent Expert was, in this report, giving voice to the growing movement advocating for the recognition and rights of gender-variant persons
The United Nations human rights bodies have seen the terms of discourse pivot away from the monolithic ‘LGBT’ and toward ‘SOGI’ (Sexual Orientation and Gender Identity), a phrasing which aims to broaden the scope of the identities contained thereunder and to move away from status-based rights claims limited to narrowly-defined identities

Summary

Rights Law

Gendered identities and gender variance have become a regular subject of the discourse of the United Nations human rights protection mechanisms. This article explores the manner in which gender identities are discussed, constructed, and regulated by the international human rights law system. Through use of postcolonial and feminist theoretical lenses, it argues that the emergence of multiple gendered identities into the legal mainstream has required the United Nations human rights bodies to expand their concepts of gender and to develop a new vocabulary and jurisprudence of gender variance. The article examines the language used in the construction of gendered subjects and its relationship to dynamics of state and postcolonial power. It introduces the concept of the ‘cisgender matrix’ to international human rights law, expressing the hierarchical social privilege given to binary, stable gendered identities over gender-variant ones

INTRODUCTION

EMERGING GENDERED SUBJECTS IN INTERNATIONAL HUMAN RIGHTS LAW

CEDAW and the construction of women

The Yogyakarta Principles and queering IHRL

CONSTRUCTED AND EXCLUDED SUBJECTS

Pathologisation and biological essentialism

Normative Westernisation

CONCLUSION