The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará) in 1994, is a treaty of the Organisaton of American States to address violence against women. Although the treaty talks about gender based violence in Article 1, it is clear that in this instance gender is used as a synonym of sex, and woman is intended to define a human female, not anyone who identifies as a woman. This treaty is mentioned in Madrigal Borloz report as another piece in the creation of a ‘genealogy’ for gender identity by appropriating all those legal instruments that were designed to advance the sex based rigths of women reframing them as including males identifying as women (and disregarding women who identify as men but remain vulnerable to sex based discrimination and without reproductive rights which are not protected in the American Convention of Human Rights, which protects life from conception).
Victor Madrigal Borloz claims that, in its advisory opinion OC-24/17 the Inter-American Court of Human Rights recognized that the Convention of Belém do Pará applied to trans women on the basis of self-identification. This is the Advisory Opinion cited in Madrigal Borloz report in support of self ID. The Advisory Opinion was requested by Costa Rica in 2017 in the following terms:
1. “Taking into account that gender identity is a category protected by Articles 1 and 24 of the ACHR [American Convention on Human Rights], as well as the provisions of Articles 11(2) and 18 of the Convention: does this protection and the ACHR imply that the State must recognize and facilitate the name change of an individual in accordance with his or her gender identity?”
2. “If the answer to the preceding question is affirmative, could it be considered contrary to the ACHR that those interested in changing their given name may only do so through a judicial procedure, in the absence of a pertinent administrative procedure?”
3. “Could it be understood that, in accordance with the ACHR, Article 54 of the Civil Code of Costa Rica should be interpreted as to imply that those who wish to change their given name based on their gender identity are not obliged to submit to the judicial procedure established therein, but rather that the State must provide them with a free, prompt and accessible administrative procedure to exercise that human right?”
4. “Taking into account that non-discrimination based on sexual orientation is a category protected by Articles 1 and 24 of the ACHR, in addition to the provisions of Article 11(2) of the Convention: does this protection and the ACHR imply that the State should recognize all the patrimonial rights derived from a relationship between persons of the same sex?” and
5. “If the answer to the preceding question is affirmative, must there be a legal institution that regulates relationships between persons of the same sex for the State to recognize all the patrimonial rights that derive from that relationship
The request is complex and multifaceted (part of it having to do on the procedure for changing one’s name) and the Advisory Opinion runs for 130 pages. Victor Madrigal Borloz quotes its paragraph 78 as evidence that the IACHR recognises that the Convention of Belém do Pará applies to transwomen on the basis of self ID. This is the text of paragraph 78:
Based on the above and taking into account the general obligation of respect and guarantee established in Article 1(1) of the American Convention, the interpretation criteria established in Article 29 of this Convention, the provisions of the Vienna Convention on the Law of Treaties, the resolutions of the OAS General Assembly, and the United Nations treaty bodies (supra paras. 71 to 76), the Inter-American Court establishes that sexual orientation and gender identity, as well as gender expression, are categories protected by the Convention. Accordingly, the Convention proscribes any discriminatory law, action or practice based on the sexual orientation, gender identity or gender expression of the individual. Consequently, no provision, decision or practice under domestic law, either by state authorities or private individuals, can reduce or restrict in any way the rights of a person on the grounds of their sexual orientation, their gender identity and/or their gender expression.
Paragraph 78 of the AO refers to Article 1(1) of the American Convention on Human Rights and not, seemingly to the Belém do Pará Convention (whose Article 1 contains a single paragraph) and it does not make reference to self identification (though it refers to gender identity and gender expression). It is true that the Court goes on to say that gender identity ‘makes space’ for self-identification (at paragraph 32, and 145) but this is yet another example of the report being careless with quotes. In fact, at paragraphs 145-6 the Court does say this:
As already mentioned (supra para. 32.h), gender identity creates space for self-identification, in other words, the experience that a person has of his or her own gender and, in some cases, this may eventually involve the modification of the appearance or bodily functions by medical, surgical or other means. However, it is important to stress that gender identity is not a concept that should be systematically associated with physical transformations. This should be understood even in situations in which a person’s gender identity or expression is different from the one assigned at birth, or that is typically associated with the sex assigned at birth, because transgender persons construct their identity regardless of medical treatment or surgery (supra para. 32.h).
Consequently, the procedure for name change, change of the photograph and rectification of the reference to sex or gender in records and on identity documents cannot require supporting evidence of total or partial surgery, hormonal therapy, sterilization, or bodily changes in order to grant the request or to prove the gender identity in question, because this could be contrary to the right to personal integrity recognized in Article 5(1) and 5(2) of the American Convention. Indeed, subjecting the recognition of a transgender person’s gender identity to an undesired surgical intervention or sterilization would mean conditioning the full exercise of several rights, including the rights to privacy (Article 11(2) of the Convention) and to choose freely the options and circumstances that give a meaning to his or her existence (Article 7 of the Convention), and would lead to the refusal of the full and effective enjoyment of the right to personal integrity. It should be recalled that, in the case of I.V. v. Bolivia, this Court indicated that health, as an integral part of the right to personal integrity, also includes the liberty of everyone to control their health and their body, and the right not to suffer from interferences, such as to be subjected to torture or to non-consensual medical treatments and experiments. The foregoing could also constitute a violation of the principle of equality and non-discrimination contained in Articles 24 and 1(1) of the Convention because cisgender persons would not need to submit to such obstacles and harm to their personal integrity in order to enforce their right to identity.
The Advisory Opinion is predictable:
2. The change of name and, in general, the rectification of public records and identity documents so that these conform to the self-perceived gender identity constitute a right protected by Articles 3, 7(1), 11(2) and 18 of the American Convention, in relation to Articles 1(1) and 24 of this instrument; consequently, States are obliged to recognize, regulate and establish the appropriate procedure to this end, as established in paragraphs 85 to 116. by unanimity that:
3. States must ensure that persons interested in rectifying the annotation of gender or, if applicable the mention of sex, in changing their name and changing their photograph in the records and/or on their identity documents to conform to their self-perceived gender identity may have recourse to a procedure that must: (a) be centered on the complete rectification of the self-perceived gender identity; (b) be based solely on the free and informed consent of the applicant without demanding requirements such as medical and/or psychological certifications and others that could be unreasonable and pathologizing; (c) be confidential, and the changes, corrections or amendments to the records and the identity documents should not reflect the changes to conform to the gender identity; (d) be prompt and, insofar as possible, cost-free, and (e) not require evidence of surgery and/or hormonal therapy. The procedure best adapted to these elements is the notarial or administrative procedure. States may provide in parallel an administrative procedure that allows the person a choice, as established in paragraphs 117 to 161.
by unanimity that:
4. Article 54 of the Civil Code of Costa Rica, as currently worded, is compatible with the provisions of the American Convention only if it is either interpreted by the courts, or regulated administratively, to the effect that the procedure established by this article can guarantee that persons who wish to change their identity data so that this conforms to their self-perceived gender identity is effectively an administrative procedure that meets the following criteria: (a) it must be centered on the complete rectification of the self-perceived gender identity; (b) it must be based solely on the free and informed consent of the applicant without demanding requirements such as medical and/or psychological certifications and others that could be unreasonable and pathologizing; (c) it must be confidential, and the changes, corrections or amendments to the records and the identity documents should not reflect the changes to conform to the gender identity; (d) it should be prompt and, insofar as possible, cost-free, and (e) it should not require evidence of surgery and/or hormonal therapy. Consequently, based on the conventionality control, Article 54 of the Civil Code should be interpreted pursuant to the above standards so that persons who wish to comprehensively rectify their records and/or identity document to their self-perceived gender identity may truly enjoy the human rights recognized in Articles 3, 7, 11(2), 13 and 18 of the American Convention as established in paragraphs 162 to 171.
It may be irrelevant to note that this is an all male court except one female judge, as the capture of this ideology trascends sex classes. The opinion, which cannot be praised for concisiveness, still manages to ignore any potential conflict arising from the protection of female services and the self-identification of males in the female sex class. The third party interveners do not include any feminist organisation. How captured the Court is by gender ideology, and how far they are willing to stray from logic and reason is apparent from the definitions section at the beginning. Suffice it to quote the definitions of gender identity and transgender. For the first, the Court, relying on the Yogyakarta Principles, says that:
Gender identity: Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function through medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms. Gender identity is a broad concept that creates space for self-identification, and reflects a deeply felt and experienced sense of one’s own gender. Thus, gender identity and its expression also take many forms; some people do not identify themselves as either male or female or identify themselves as both.
And this is the definition of transgender they report:
Transgender or trans: when the gender identity of the person does not correspond with the sex assigned at birth. The gender identity of a trans person is not determined by surgical interventions or medical treatments. The word trans is an umbrella term used to describe people with a wide range of gender identities, and the common denominator is that their sense of their own gender is different to the sex that they were assigned at birth and the gender identity that has traditionally been assigned to them. A transgender or trans person may identify her or himself as a man, woman, trans man, trans woman or non-binary person, or in other terms such as hijra, third gender, two-spirit, transvestite, fa’afafine, queer, transpinoy, muxhe, waria and meti. The concept of gender identity differs from that of sexual orientation.
So gender identity is both a ‘deeply felt internal experience’ AND ‘traditionally assigned’ to people. How is one supposed to make sense of this ideology?
We not supposed to make sense of it, we are supposed to take it on faith. From ghoulies and ghosties and long-leggety beasties and things that go bump in the night, gender lord deliver us, amen.