After this dip into a comparative look into European countries’ legislation on transsexuality, let us move back to the blueprint for this investigation into the genealogy of gender identity the Report by the UN Independent Expert on SOGI, Victor Madrigal Borloz. The Report collects the supposed evidence of the legal basis of gender identity in international law. We have seen so far the supposed ‘evidence’ in primary conventional sources, such as treaties, and how the only way to read a presence of gender identity into such sources by means of interpretation of gender (and gender identity) where treaties talk about sex. The evidence from judicial proceedings include international courts such as the European Courts of Human Rights and the Court of Justice of the European Union, and domestic courts.
At page 15 of the Report, the IE states:
[…] the jurisprudence of the European Court of Human Rights on article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) adopts an expansive conception of the notion, which extends protections to individuals on the grounds of sexual orientation and gender identity, and under the sex discrimination test of article 14, the Court has built up a fairly expansive understanding of gender theory.
Quite apart from whether it is appropriate to read gender identity into sex as a protected category (and clearly I propose it is not appropriate), the important issue, in any case about discrimination, and this matters for equality as well as human rights law, is what the comparator is. Issues of comparators are often wrongly decided in lower courts or inaccurately described in academic literature.
In Shamoon v Chief Constable of the RUC [2003] ICR 337 HL, Lord Scott of Forscote described a comparator in the following manner:
[…] the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class.
So that clearly, in cases involving a male identifying as a woman, it is crucial to determine if the correct comparator is a woman who is not transexual, as supporters of gender theory aver, or a male not identifying as a woman, which I suggest is the correct interpretation that avoids two fundamental issues with the first option: the first one is that effectively one lets the person claiming discrimination select his own comparator (if the identification as a woman does not have any legal basis); alternatively, that, if the defendant in the discrimination case is the State, the defendant was able to select the comparator in the claim (if there is a legal basis to the identification as a woman, such as a GRC or similar).
The CJEU clarified that in the Council Directive 76/207/EEC, that the comparator for a male with the characteristic of gender reassignment (a transsexual or transwoman) is a male without the characteristic of gender reassignment. Remember that, for the purpose of EU law, especially at the time before the Charter of Fundamental Rights become part of the applicable law, two conditions obtained for the application of EU law: a cross border element, and a legal basis in the treaties. This is the reason why the Directive is limited to ‘on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions’.
In P. v. S. and Cornwall County Council (C-13/94, Rec. 1996, p. I-2143 the Court clearly stated:
... [w]here a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment [emphasis added]. To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled and which the Court has a duty to safeguard.” (paragraphs 21-22).
Both the ECtHR’s and the CJEU’ jurisprudence well into the 2000s are crystal clear on the issue of comparators, as this quote from Napotnik v Romania from 2020 demonstrates. The case concerns pregnancy discrimination of a diplomatic worker. In its judgment, finding against the applicant (but the decision is not what is relevant here, the reasoning is), the Court states:
77. The Court observes that only women can be treated differently on grounds of pregnancy, and for this reason such a difference in treatment will amount to direct discrimination on grounds of sex if it is not justified. On this point, the Court cannot but note that a similar approach has also been taken by the CJEU in its case-law (see paragraphs 44 and 46 above), and that the approach is consistent with domestic law (see paragraph 31 above) and practice (see paragraphs 34‑36 above).
There is a lengthy consideration of the issue of pregnancy discrimination in international, European (both Council of Europe and European Union) and Romanian law, and at no point does the Court considers that pregnancy discrimination could affect those who are legally male but never affect those who are legally, and not biologically, female.
A transwoman’s diplomatic posting cannot be terminated because of pregnancy. But a transman’s posting can. So gender is relevant, but the comparator is not a person of the opposite sex, but a person of the same sex who is not transgender. In fact in this case the word gender is not even used once. Sex is used 25 times. The Court is clearly well aware that pregnancy discrimination is something that affects women because of their sex and not their gender identity.
Into this legal morrass in which international courts talk on both sides of their mouth, and in which women are discriminated because of their sex, but it is gender identity that makes a woman, we reach the 2011 Council of Europe Istanbul Convention preventing and combating violence against women and domestic violence.
This is the first international, or better regional treaty where gender identity is specifically mentioned.
Article 4 of the Convention recites as follows:
Article 4 – Fundamental rights, equality and non-discrimination
1. Parties shall take the necessary legislative and other measures to promote and protect the right for everyone, particularly women, to live free from violence in both the public and the private sphere.
2. Parties condemn all forms of discrimination against women and take, without delay, the necessary legislative and other measures to prevent it, in particular by:
– embodying in their national constitutions or other appropriate legislation the principle of equality between women and men and ensuring the practical realisation of this principle;
– prohibiting discrimination against women, including through the use of sanctions, where appropriate;
– abolishing laws and practices which discriminate against women.
3. The implementation of the provisions of this Convention by the Parties, in particular measures to protect the rights of victims, shall be secured without discrimination on any ground such as sex, gender, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, sexual orientation, gender identity, age, state of health, disability, marital status, migrant or refugee status, or other status.
The explanatory report provides the following text to justify the inclusion of gender identity in the protected categories:
Certain groups of individuals may also experience discrimination on the basis of their gender identity, which in simple terms means that the gender they identify with is not in conformity with the sex assigned to them at birth. This includes categories of individuals such as transgender or transsexual persons, cross-dressers, transvestites and other groups of persons that do not correspond to what society has established as belonging to “male” or “female” categories.
The familiar language of gender theory is making an appearance (e.g. sex assigned at birth). Although the convention is ostensibly for violence against women, the inclusion of sex, gender and gender identity deprives the protection of all significance. Although it is true that both men and women can be victims of domestic violence there is a clear gendered aspect to this sort of violence, that the Convention dilutes at the same time as for the first time it seeks to recognise and make visible.
It is not clear what is the basis for including a male cross dresser in a convention for combating violence against women. Women are not males who dress up. This is an incomprehensible extension of the class of females to include any male who does not conform to male stereotypes, but conforms to female stereotypes. It is also quite unclear why not conforming to male stereotypes transforms you into a woman and therefore entitled to the protection of the Istanbul Convention. Notice also that in this convention there is no definition of gender identity nor any attempt to claim that having a gender identity is a universal experience (so in contrast with the work of the IE Victor Madrigal Borloz, but he does not pay any attention to this inconsistency, as well as many others that arise from the theory). Gender identity is apparently relevant only for those whose gender ID does not match their sex at birth. There follows the list, clearly not a closed list (see ‘such as’) of individuals whose gender identities grants them special protection under the convention. The perverse effect is that a woman who submits to the rigid gender norms imposed on her sex is not a visible subject of the Convention. A man who cross-dresses as a sexual fetish is. And yet, for a woman to submit to the gender norms without rebellion may mean giving up on further education, accepting to marry a man considerably older than herself when she is still legally a child, accepting to be beaten by her husband without reporting him to the authorities, having sex with him even when not wanting to, not taking contraception because her husband does not approve of it, resigning from her work upon marriage… The list is endless. But all these violations of women’s rights are invisible because without rebellion, there is no gender identity discrimination and without reporting, the sex based discrimination can be ignored (and will be ignored). But an AGP man can demand protection by the Convention for his fetish. The only criticism of the introduction of gender identity in the Convention that is reported and noted is the criticism coming from conservatives and religious groups (see for example here). Any concern raised by feminists is ignored and dismissed, or reframed as conservative, funded by right wing groups, bigoted, uninformed etc. This can be said for the Istanbul Convention but more widely for any critical voice arising from the feminists who are sometimes defined as ‘gender critical’.
The inclusion of gender identity in the text created resistence during the negotiation of the text as we can glean from the traveaux préparatoires (this is the term, preparatory work, by which the negotiations on a treaty text are called in international law). In the Report of the 3rd meeting of the Ad Hoc Committee for preventing and combating violence against women and domestic violence (CAHVIO) composed of governmental representatives of Council of Europe member states, it was reported that:
Concerning the equality and non-discrimination clause contained in article 3, several delegations commented on the grounds of discrimination as currently listed. While some preferred an extensive list, others questioned the inclusion of grounds such as “gender identity” and “sexual orientation”. In particular, the Russian Federation stressed its view that the scope of the future convention should not extend to same-sex relationships and that the grounds for discrimination should not include “sexual orientation”.
Russia did not change its reservations and to them we see that Lithuania expresses more pointed reservations specifically to gender identity in the 8th meeting:
Article 4 on “Fundamental rights, equality and non-discrimination”: Russian Federation (on the reference to sexual orientation and gender identity in paragraph 3); Lithuania (on the reference to gender identity in paragraph 3).
Russia never did sign the Convention. Lithuania has signed it but not ratified it. Ukraine has entered the following declaration:
Ukraine notes that in accordance with the Constitution of Ukraine, no ideology is recognized by the State as mandatory and is not subject to introduction.
Ukraine declares that it will apply the Convention in accordance with the values, principles and norms within the limits determined by the Constitution of Ukraine, in particular with regard to the protection of human rights and fundamental freedoms, equality of the rights and opportunities of women and men, gender identity, the formation of responsible motherhood and fatherhood, the support of family and the protection of childhood.
From the second decade of the 2000s the references to gender identity become more frequent in primary materials.