A Genealogy of Gender Identity - A Series

Part I: An Introduction Ending with a Warning

As the juggernaut of gender ideology continues its march across institutions, I saw the urgency of studying how this concept, which had no history at all before the 1960s, managed to become so influential and inevitable in such a short time. There are many areas of public life where gender identity has bullied all other ideas out of the field, from politics (remember We Are the 99%? Of course you do not, now that means you are a cis person, and that is BAD), to sociology, criminology, philosophy, medicine, biology. But my field of expertise is international law, and so I was particularly interested in the way gender ideology managed to establish itself as a legitimate ideology in the traditionally sceptical world of international lawyers. To my surprise, international lawyers turned out to be some of the most gullible professionals around, at least when academic publicists (specialists in public international law) are concerned.

For those with little knowledge of international law (lucky you) there are a couple of elements we need to keep in mind: first, international law is the law regulating the relationship between States, traditionally, but increasingly it is a law that concerns also other subjects, from international organisations, to corporations, to individuals; second, international law is made up of numerous sub-regimes, such as human rights law, international economic law (trade and investment), humanitarian law, space law (yep), the law of the sea. Some of these regimes are very old, some very recent. Human rights law is in the middle. Not as old as rules regulating the use of force, not as new as space law. We can trace its beginnings as a proper regime of international law (so no bills of rights or constitutional rights) to the period immediately following WWII, with the Universal Declaration of Human Rights at the UN in 1948, the first regional human rights treaty, the European Convention on Humam Rights of 1950, and following the 10 UN human rights treaties (a salad of acronyms and abbreviations, ICCPR, ICESCR, CAT, etc etc) and the other regional treaties.

Inevitably, the international legal regime more vulnerable to capture by gender ideology (or gender theory as they call it) is the international human rights regime. So I am slowly collating a genealogy of the usage of this term by international human rights institutions and courts, including the European Court of Human Rights, the Court of Justice of the European Union (now also interpreting and applying the Charter of Fundamental Rights of the EU) and the so-called treaty bodies, semi-judicial bodies entrusted with the interpretation of the UN human rights treaties, listening to individual complaints, and assessing how individual countries who are contracting parties to those treaties comply with their treaty obligations. I will be especially concerned with the work of the Independent Expert on Sexual Orientation and Gender Identity (SOGI) . As noted in their webpage, ‘the UN Human Rights Council [the most important of those bodies I was telling you about, entrusted with monitoring compliance with all human rights obligations of UN member states, and a lot more] created the mandate of Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity… through Human Rights Council resolution 32/2 in June 2016 for an initial period of three years, the mandate was renewed in June 2019 under resolution 41/18’.

The independent expert is Victor Madrigal Borloz, who was very recently in Scotland, giving evidence to the Equalities, Human Rights and Civil Justice Committee who are considering the Gender Recognition Reform (Scotland) Bill (here).

I have used the reports of Madrigal Borloz as a blue-print for my recostruction of a genealogy of gender identity in international law for a precise reason, and that is that these reports intend to establish a narrative, a history of this concept embedding it in human rights law as if it were an inevitable and natural part of the fabric of human rights. This strategy is used across the board. We see it every time someone claims trans rights are the new civil rights struggle. Every time someone mentions Section 28 as an analogy to what gender critical women say about trans rights. Every time someone says trans people always existed and indigenous cultures always knew many genders (it is not much of a spoiler to say that these are all narrative building exercises of embedding falsehoods in a background of known truths). Everytime someone says intersex conditions prove sex is not binary. The examples are endless.

What makes the exercise especially interesting, I think, in international law, is that law is heavily dependent on definitions and on an internal legal logic, and gender theory is incompatible with both. It will be very interesting to investigate how this exercise of narrative building manages to avoid the strictures of legal logic (another spoiler, it doesn’t). I am not, for now, interested in the why, but in the how. How has gender identity managed to transform from an obscure idea born in the mind of a discredited sexologist with a penchant for excusing paedophilia and experimenting on children (that is John Money for those of you lucky enough never to have heard of him) to something that the UN Independent Expert says all human beings have?

If you stay in for the ride we will find out together.

Warning: there will be a lot of analysis of court cases.

P.S: The image is taken from the 2018 SOGI IE Report’s Summary. It shows a female body (of course!) with a scalpel mutilating genitals and breasts (oh the freedom to call it what it is).

2018 SOGI Report