Sex/gender is fluid, what now for feminism and international human rights law? A call to queer the foundations

Abstract

In recent years critique of feminist engagements with international human rights law through the lens of queer perspectives has steadily increased. This critique has sought to build upon previous feminist work as well as to reveal and challenge its more problematic elements or themes. In this chapter I want to focus on one key critique of feminist engagements with international human rights and its theoretical underpinnings which has been raised by the insights of queer theory; the assertion that sex/gender is fluid. Queer thinking has been utilised to demonstrate how feminist work on international human rights law has been committed to an understanding of sex as a natural biological fact, existing in the binary of male/female and asymmetry of male>female, and to gender as an associated social construct of masculinity/femininity which invisibilises wider conceptions of living and being gendered and gender as a heteronormative technology of power. In focusing on this critique and considering its contours, the discussion to follow seeks to engage an important question – what now for feminism and human rights? After an understanding of sex/gender as fluid, and of gender as a nuanced technology of power which simultaneously disciplines and enables multiple identities and subjects, how can feminist work on international human rights law proceed? Various responses to this question have been put forward. While these responses are useful in gesturing towards some strategies for moving forward following critique, it is asserted that they do not go far enough. What is advanced is that feminist engagements with human rights cannot proceed by merely adopting an alternative, queer perspective to sex/gender alone. Rather, what is needed is an equally queer approach to rights themselves – a queering of their foundations – which has not yet been fully exploited in feminist work. Alongside embrace of an understanding of sex/gender as non-binary, fluid and always existing in excess of attempts to contain it, rights must be understood in the same way. In order to capitalise on the space offered by international human rights law to advance alternative non-binary understandings of sex/gender and to challenge heteronormative regimes of power, human rights themselves must be approached as fluid, non-binarised and multitudinous and feminists must reflect on what this might mean for alternative engagements with rights within international human rights law. Queering the foundations of human rights may involve, it is outlined, understanding international human rights in ways that foreground the fact that they are not necessarily state-led, confined within the structures of international treaties or other documents; that they need not operate within binaries such as local/international, civil political/social, cultural and economic, expert/non-expert; and that they exist in an ongoing process of articulation which is central to their very universality. Discussing human rights in this way does not seek to derail the feminist project in international human rights law, but aims to return to reclaim, refocus and rethink what can be understood as the driving force of earlier feminist work on rights in a new, queer way in the contemporary period.