I return to the Report by Victor Madrigal Borloz of 2021 as it keeps tracking the embeddedness of gender theory in international human rights law. At page 25, it states that:
The provisions of the African Charter on Human and Peoples’ Rights support the conclusion that every person enjoys the Charter rights irrespective of gender identity.
This is one of the clumsiest arguments e silentio being made. It could equally be said that the provisions of the African Charter support the conclusions that every person enjoys the Charter Rights irrespective of star sign. Of course the Charter contains the usual prohibition against discrimination on the basis of sex. Already within the European context this has been interpreted to include discrimination on the basis of sexual orientation and gender identity. This is acceptable provided it is intended to mean discrimination on the basis of homosexuality or gender non conformity. It is beyond the scope of the Charter, as well as the other instruments, to incorporate a right to self identify one’s gender/sex without any grounding in material reality. It is in fact true that the non discrimination provision in the Charter is an ‘open list’, incorporating ‘any other status’ as a ground for discrimination. But that does not transform a belief, such as the belief that people have a changeable gender identity which trumps their sex, into a status grounded in material reality. This logical fallacy is repeated over and over in the instruments and cases I have examined so far and it is repeated here in the interpretation by the Independent Expert.
We see here the construction of a narrative that words mean not what they have always meant but what an ideology developed in Western academia has decided they mean, and how these interpretation is imposed, in an exercise of cultural colonialism, in non Western cultures, as part of the usual ‘human rights and development’ package that accompanies economic support and trade deals.
Dutifully, the African Commission on Human and People’sRights, in 2014 issued Resolution 275 on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity:
Recalling that Article 2 of the African Charter on Human and Peoples’ Rights (the African Charter) prohibits discrimination of the individual on the basis of distinctions of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status;
Further recalling that Article 3 of the African Charter entitles every individual to equal protection of the law;
Noting that Articles 4 and 5 of the African Charter entitle every individual to respect of their life and the integrity of their person, and prohibit torture and other cruel, inhuman and degrading treatment or punishment;
Alarmed that acts of violence, discrimination and other human rights violations continue to be committed on individuals in many parts of Africa because of their actual or imputed sexual orientation or gender identity;
Noting that such violence includes ‘corrective’ rape, physical assaults, torture, murder, arbitrary arrests, detentions, extra-judicial killings and executions, forced disappearances, extortion and blackmail;
Further alarmed at the incidence of violence and human rights violations and abuses by State and non-State actors targeting human rights defenders and civil society organisations working on issues of sexual orientation or gender identity in Africa;
Deeply disturbed by the failure of law enforcement agencies to diligently investigate and prosecute perpetrators of violence and other human rights violations targeting persons on the basis of their imputed or real sexual orientation or gender identity;
Condemns the increasing incidence of violence and other human rights violations, including murder, rape, assault, arbitrary imprisonment and other forms of persecution of persons on the basis of their imputed or real sexual orientation or gender identity;
Specifically condemns the situation of systematic attacks by State and non-state actors against persons on the basis of their imputed or real sexual orientation or gender identity;
Calls on State Parties to ensure that human rights defenders work in an enabling environment that is free of stigma, reprisals or criminal prosecution as a result of their human rights protection activities, including the rights of sexual minorities; and
Strongly urges States to end all acts of violence and abuse, whether committed by State or non-state actors, including by enacting and effectively applying appropriate laws prohibiting and punishing all forms of violence including those targeting persons on the basis of their imputed or real sexual orientation or gender identities, ensuring proper investigation and diligent prosecution of perpetrators, and establishing judicial procedures responsive to the needs of victims.
Of course there should no ground for the discrimination and abuse. But being abused because people assume you are trans does not validate the theory that people have a changeable gender identity. It is just indicative of a society where gender roles are very rigidly enforced and where a man who desires to follow the gender roles assigned to women (or vice versa) is not acceptable. This does not mean that the gender roles in themselves need any sort of protection or legal endorsement and a fortiori that inhabiting a sterotypical feminine gender role transforms a man into any kind of woman.
The construction of the narrative is continued with the use of the Advisory Opinion by the African Court on Human and People’s Rights No. 01/2018 of 4 December 2020. The Advisory Opinion is on the compatibility of vagrancy laws with the African Charter. The Court finds them not to be compatible with the Charter on several grounds and explains, at para 70:
the Court notes that vagrancy laws, effectively, punish the poor and underprivileged, including but not limited to the homeless, the disabled, the gender-nonconforming, sex workers, hawkers, street vendors, and individuals who otherwise use public spaces to earn a living. Notably, however, individuals under such difficult circumstances are already challenged in enjoying their other rights including more specifically their socio-economic rights. Vagrancy laws, therefore, serve to exacerbate their situation by further depriving them of their right to be treated equally before the law.
The Independent Expert takes this as confirmation that this applies to gender identity, confirming its existence. If I do not conform to stereotypes, why should this reify the stereotypes into an identity worth of protection? Gender non conforming does not equal transgender. If gender is a norm enforced in a specific place at a particular time, then, for example, a woman who refuses to abide by the Taliban’s recent ruling on face coverage is gender non conforming. A woman in the UK who does not take her husband’s name upon marriage is gender non conforming. Most people in democratic, progressive societies are gender non conforming, only in the sense that gender norms are not that strictly enforced, so conforming to them is a matter of choice. Statistically, since the almost totality of the world population is not transgender, gender non conformity is a behaviour associated to the human condition in general. It is also offensive that anyone who is not transgender is conforming to gender norms. On the contrary, if it is true that transwomen are women, then most of them conform to stereotypes on how a woman is supposed to look (though very few of them conform to gender norms relating to caring responsibilities for example). So they are not gender non conforming at all. But of course it is not true that transwomen are women. They are males who conform to the gender norms in relation to appearance and sexual behaviour associated with women, and more specifically young, heterosexual women.
The pressure on countries to embed this ideology into local laws and policy is especially evident in vulnerable countries that depend more heavily on the assistance of the United Nations and are subjected to a heightened level of scrutiny. The International Service for Human Rights (ISHR) and the International Gay and Lesbian Association (ILGA) now renamed ILGA World to refer to International Lesbian, Gay, Bisexual, Trans and Intersex Association, are two organisation invested in embedding gender theory in the work of orgnisations such as the UN, where ILGA has consultative status at ECOSOC and where the ISHR lobbies to get other NGO to obtain consultative status, as they boast on their website (notice the focus on NGOs dealing with gender identity). ILGA and ISHR collected all the information relating to LGBTI rights between 2011 and 2021 (with a strong emphasis on the T, of course) by all Special Rapporteurs at the UN and any other Special Procedures work, finding that
In 2021, Special Procedures sent 52 communications, issued 8 reports on country visits and published 54 thematic reports in relation to LGBTI topics.
The mandates that made the most regular references to SOGIESC issues were the Independent Expert on SOGI and the Special Rapporteur on freedom of expression. In welcome advances some mandates made their first communications covering LGBTI topics (the Special Rapporteur on truth, justice and reparation and the Special Rapporteur on Belarus), and the Special Rapporteur on the right to privacy included SOGIESC issues in their report of country visit for the first time.
While slightly less than 50% of all thematic reports mentioned some LGBTI related topics, the level of detail and analysis, as well as which mandates regularly reference SOGIESC issues, indicate that opportunities remain for LGBTI defenders to strengthen this work, including in relation to specific populations within LGBTI communities, such as LBQ women, trans or intersex persons, BIPOC people with diverse SOGIESC, LGBTI migrants and refugees and LGBTI persons with disabilities.
As the work of the UN tends to have a heavier footprint in poor countries, where there is a greater need for the sort of the economic assistance that the UN can provide directly or foster indirectly, clearly there is more scope for these Special Procedures to initiate the desired legislative change. Richer countries are free to ignore or reject the work of Special Rapporteurs, as the UK did recently in the case of the work of the Special Rapporteur on Extreme Poverty Philip Alston.
Poorer and weaker countries do not have that luxury so they are targeted by gender theory organisations such as ILGA and ISHR. They are the soft underbelly of the international community for the spread of this ideology. Effectively, these factsheets increase the pressure on Special Rapporteurs to focus on LGBTI rights in all their work. Just look at this list
One important development in the update this year was the inclusion of country mandates to the scope of analysis, covering the 10 mandates that were active in 2021. This includes the Special Rapporteurs and Independent Experts on the situation of human rights in Belarus, Somalia, Mali, Eritrea, Iran, Cambodia, Central African Republic, Myanmar, Democratic People’s Republic of Korea and Palestine.
These are the kind of countries where Special Rapporteurs have a country mandate, as opposed to a thematic mandate (disability, poverty etc) to assess the human rights situation. These are countries with some of the most urgent and serious human rights issues in the world. Although there is already a Special Rapporteur for SOGI, our Victor Madrigak Borloz, these pressure groups are still insisting precious time and resources are taken away from issues such as poverty and extreme hunger to consider whether cross-dressers can get ID documents with their invented gender on it.
Transcolonialism also uses cases originating in the domestic courts of these countries as props for this ideology. This is not easily done as many of these courts still consider the cases from an LGB lens and we have seen already how cases are misrepresented to give them a gender focus instead (the Jamaican cases for example). This is also what happens for this case in Botswana Supreme Court from 2019. Ostensibly this case decriminalised same sex relationships. In his report, Madrigal Borloz introduces the case, and others from other countries, in this manner:
The processes of reception of gender and of gender identity and expression in international human rights law have been described in the Yogyakarta Principles, and in their update, known as the Yogyakarta Principles plus 10, which at the date of preparation of the present report have been referenced in universal periodic review proceedings, reports of the United Nations High Commissioner for Human Rights, reports of special procedures and treaty bodies, judgments of the European Court of Human Rights, judgments and advisory opinions of the Inter-American Court of Human Rights, and case and thematic reports of the Inter-American Commission on Human Rights, as well as countless decisions of domestic tribunals including the Supreme Courts of Botswana […..]
This case starts by misrepresenting the Penal Code of Botswana. The Court states at paragraph three of the Judgment:
Sections 164 (a) and (c) and 165 of the Penal Code proscribe and criminalise sexual intercourse and/or attempt thereof between persons of the same sex and/or gender.
I found it very unlikely that the law prohibited sexual intercourse between people of the same ‘gender’ who happen to be opposite sex, such as a male who identifies as transgender and a female. So I checked the relevant section of the Penal Code (164 is more relevant, as 165 is about the attempt to commit the offence at section 164 which recites in its entirety:
164. Unnatural offences Any person who- (a) has carnal knowledge of any person against the order of nature; (b) has carnal knowledge of an animal; or (c) permits any other person to have carnal knowledge of him or her against the order of nature, is guilty of an offence and is liable to imprisonment for a term not exceeding seven years.
So this is a pretty standard clause against sodomy involving two men or a men and a woman. Sexual relationships between two women are not contemplated, as is often the case with sodomy laws. No reference to gender at all. Also the claimant is a homosexual man challenging the constitutionality of s164 and supported by an LGB rights organisation (no mention of gender identity or transgender rights). Additionally, the claimant argues s164 indirectly discriminates against men, as even if the section is ‘gender neutral’ it affects disproportionally gay men. It seems that the Court shoehorns a whole section on gender identity (paras. 150 ff) to illustrate what human dignity means in a human rights context, and then equats gender identity to sexual orientation. The claimant is making a claim that would not be sustainable unless one accepted that one’s sex is immutable so that one cannot identify out of one’s same sex orientation. For the Court to introduce gender identity, and reinterpret s164 as prohibiting sexual relations between same gender couples is extraordinary.
It is also noteworthy that the claimant also argued s164 was unconstitutional because it was not clearly worded. At para. 197 the Court dismisses this part of the claim on the basis that s164 is clearly worded and refers to anal intercourse. So it is all the more extraordinary that they introduce the provision at the beginning of the judgment as prohibiting sexual intercourse between people of the same sex or the same gender.
The cited reference to the Yogyakarta Principles also seems completely unnecessary as there is considerable evidence that sex includes sexual orientation from international bodies and domestic courts. Where there is hard law evidence, principles without any legal basis are not necessary to support an argument. It seems the Court introduced them in the judgment only as to prop up their status as ‘authoritative’ pronouncements.
Finally, the Court itself quotes an unreported judgment from 2017 (the case is infact available here, a case that concerned ‘a transgender’ (the case shows it is a woman identifying as a man), in which the State was ordered to change the identity documents of ND, the concerned individual with the following motivation:
[…] the State has a duty to uphold the fundamental human rights of every person and to promote tolerance, acceptance and diversity within our constitutional democracy. This includes taking all necessary legislative, administrative and other measures to ensure that procedures exist whereby all State-issued identity documents which indicate a person’s gender/sex reflect the person’s self-defined gender identity.
And:
[…] the recognition of the Applicant’s gender identity lies at the heart of his fundamental right to dignity. Gender identity constitutes the core of one’s sense of being and is an integral part of a person’s identity. Legal recognition of the Applicant’s gender identity is therefore part of his right to dignity and freedom to exress himself in a manner he feels psychologically comfortable with.
This case is clearly more relevant to Madrigal Borloz’ claim that domestic courts around the world are recognising gender identity than the case from which it is taken, that dealt with sexual orientation. This sort of sloppy citation style is typical of his reports. The case relies on the Yogyakarta Principles as if they were a source of law, and on judgments of foreign courts, because of the lack of precedent in Botswana’s court. This even if the application is one of breach of ND’s constitutional rights, a matter for which foreign judgments are inevitably of little support. From a comparative perspective, this case bring us back to similar jurisprudence in the 1990s. The individual has undergone hormonal treatment and SRS and she is, as a consequence, more easily recognised as a male than a man doing the same. Women pass more easily as men, because testosterone is a very powerful drug.
In fact the review of foreign cases evidences how gender theory relies on stereotypes about how the two sexes should feel, think and present. A typical quote from the High Court of Kenya (para 75) is to the effect that the applicant is a ‘person with the body of a man and the mind of a woman’.
What is never considered in these cases is the difference between a woman who can through hormones and surgery reasonably pass as a man and a man who, despite hormones and surgery remains instantly recognisable as a man, especially by women, who are hard-wired to recognise the sex of a person at a glance. The entire case does not make a distinction between a woman passing as a man and a man clearly recognisable as a male and even with ‘the body of a man’ as the cited Kenyan case states, even while leveraging appearance as a fundamental element of the application. With a complete lack of legal argumentation, it asserts that gender identity is at the heart of the right to dignity.
The section of the judgment on the difference between sex and gender is revealing of the extremely regressive nature of gender idelogy and actually goes some way to explain why lobby groups are so keen to spread it in countries with regressive attitudes towards women and gender roles. This excerpt from the judgment is quite illustrative:
[…] It is quite evident that in our daily activities there is no formal distinction between sex and gender [the judgment open with a long explanation of how the Applicant’s gender did not match her sex]. And being female and male is generally attributed to having a masculine or feminine outward appearance and demeanour [emphasis added].
[….]
The notion that sex includes societal preconceptions of the role of female or male or how a man or a woman should behave is particularly highlighted by the remarks of the Applicant [….]:
“As my identity documents say I am a woman, society expects me to act in a feminine manner and express myself as a woman. For instance, when I am required to produce my Omang [ID document] at my local supermarket the cashier associate my masculine gender expression as that of a man and I am addressed as ‘Sir’ but the moment I produce my Omang and it says female, it creates alarm”.
I think this quote is quite enough to appreciate how much gender theory depends on entrenched gender roles, and cannot be validated without them. It comes as no surprise that a male judge in a conservative society is happy to rely on the premise that women should behave in a feminine manner and that surely they must be some sort of man if they do not.
It is important to note finally that there is a serious conceptual error in assuming ‘sex’ and ‘gender’ are synonyms. Gender has been used, especially in somewhat puritan US, as a ‘euphemism’ for sex, to avoid any ambiguity between sex as a biological class and sex as intercourse. A euphemism is not a synonym, and while gender can mean sex, sex cannot mean gender, because it does not perform the same role as a euphemism. But this conceptual error is necessary for the judge to claim that the applicant’s gender identity can mean the applicant’s sex, and viceversa. It is not so.
B Camminga, in his review of the case explains the legal strategy adopted in ND to convince the judge.
In summary the litigation strategy for ND’s case was to show him as a normal man experiencing abnormal circumstances. The first step to doing this was, perhaps surprisingly, given that this was a court case, “not being too legalistic” […]
The second strand to this approach was to show the judge how documents related to daily inconveniences: incongruent documents frustrated ND's ability to go about daily tasks, situations that the judge might himself find quite mundane or unremarkable until disrupted. Crucially, tasks also linked to being a man, in this case, being a provider, and as such, having an accessible bank account…
the[…] judge was not progressive; he was a just a man who had come up through the legal system. He had never been a practising lawyer or activist. Due to this, they needed him to see the case as personal, regardless of the support from SALC; it was important for the judge not to think this was an assault on the system but rather the needs of one person. To this end, it was necessary to “you know let him look at one person because it’s a person for starters…It’s an individual having their own individual problems, personal problems” (Rantao, 2018). ND was in court with his partner every day. Rantao notes that because arguments are presented from papers in order to ensure the Judge could put a face to a name, to humanise ND, he made sure to speak to ND in view of the Judge. The Judge never asked who ND was or who Rantao was talking to in the gallery. Yet, in doing so, the image of ND as a just a man with his girlfriend by his side, a very normal, wholesome and heteronormative image was created
[…] We see the outcome of this normalisation strategy in the judge’s eyes through his acknowledging that ND is “indeed a man” (para. 62). The Judge placed considerable weight on the fact that ND presented and fit what could be perceived as the stereotypical male appearance: “beard”, “broad shoulders”, “deep masculine voice” (para. 67).
All emphasis mine. I do not think further comment is needed.