The image above is the definition of gender identity in the Yogyakarta Principles, drafted in 2006 by a group of human rights practitioners and academics (Yogyakarta Principles). These Principles are not a legally binding document (only States can pass, either directly or through international organisations, legally binding rules in international law). At most, we can say that they constitute ‘soft law’, defined as ‘[…] agreements, principles and declarations that are not legally binding. Soft law instruments are predominantly found in the international sphere. UN General Assembly resolutions are an example of soft law’ (ECCHR soft law). The hard law/soft law distinction is contested in international law, but in simple terms one can say that the difference is that hard law rules are enforceable (either in international courts or tribunals if these are available and can have jurisdiction, or by the older, self-help means available, such as countermeasures [tit for tat, for the non-lawyers]), while soft rules are not. But soft rules can be very influential, if they are used by courts and tribunals to interpret hard law rules. One way we see this is by domestic and international courts quoting soft law rules in their judgments and awards. In the following posts, we will see how courts have started to quote the Yogyakarta Principles approvingly, as reflecting the current interpretation of established legal rules.
One more thing before we delve into the history of gender identity in international law. Human rights courts have traditionally adopted an interpretation of legal texts as ‘living instruments’, to be interpreted in line with evolving social customs (the term was first used by the European Court of Human Rights in the 1978 Tyrer case). It is thanks to this doctrine that the Yogyakarta Principles can be used to interpret ‘gender identity’ into human rights legal texts that make no mention of it.
We are tracking the usage of the term gender identity in international law. This is also done by the Report. We need to remember that this is done in the Report, and in the work of the IE for SOGI at the UN in order to embed gender identity in international law. To do so, it is necessary to reinterpret gender to define not sex, as a synonym of it, but gender identity, as a separate and independent reality from sex.
It is the Vienna Declaration and Programme of Action, of 1993, and its Programme of Action of the International Conference of Population and Development to first use the term ‘gender’. In both documents gender is used either as a synonym of sex (such as in the ‘gender-specific data’ use) and/or as a reference to sexist behaviour (‘gender-based violence’, for example). All the same, these usages are mentioned in the Report in order to establish a genealogy of term and augment its legitimacy. A similar use is in the 1994 Cairo Declaration on Population and Development and the 1995 Bejing Platform for Action of the Fourth World Conference on Women. This declaration also signals a change in the understanding of this term, to the extent that a separate Annex (Annex IV) was appended to the document to reflect a common understanding of the term. The Annex states as follows:
1. During the 19th meeting of the Commission on the Status of Women, acting as preparatory body for the Fourth World Conference on Women, an issue arose concerning the meaning of the word "gender" in the context of the Platform for Action of the Conference. In order to examine the matter, the Commission decided to form a contact group in New York, with the Commission’s Rapporteur, Ms. Selma Ashipala (Namibia), as Chairperson. The Commission mandated the informal contact group to seek agreement on the commonly understood meaning of "gender" in the context of the Platform for Action and to report directly to the Conference in Beijing.
2. Having considered the issue thoroughly, the contact group noted that: (1) the word "gender" had been commonly used and understood in its ordinary, generally accepted usage in numerous other United Nations forums and conferences; (2) there was no indication that any new meaning or connotation of the term, different from accepted prior usage, was intended in the Platform for Action.
3. Accordingly, the contact group reaffirmed that the word "gender" as used in the Platform for Action was intended to be interpreted and understood as it was in ordinary, generally accepted usage. The contact group also agreed that the present report should be read by the President of the Conference as a president’s statement and that the statement should be part of the final report of the Conference.
The Statement is ambiguous, as it does not report explicitly the ordinary accepted meaning of the term gender, though it is reasonably clear that it is either used to mean sex, or sexism (that is, discriminatory treatment on the basis of sex, such as ‘gender violence’). The Statement also signals that a battle was taking place between what would become the supporters of gender theory and those who took a critical approach to gender theory, who are often, in international law, equated to conservative and/or religious countries, that is, the countries that first objected to the feminist use of gender (one of the most vocal critics of the use of term gender was the Holy See (Working Group on Discrimination against Women and Girls). The voices of gender critical feminists tend to get lost in the political battle at the international level. I am not interested here in following debates within feminism on the multiple meanings of gender (Thinking Gender), but only to track its usage and to understand how much critical feminists reflections on the way gender, i.e. the social constructs around sex, have been reinterpreted as a signifier for sex.
In any event, up until 2000 at least, gender is never used to express an identity or in reference to transgender individuals. It is either a synonym for sex, or refers more or less openly to feminist understandings of the social expectations placed upon women on the basis of their sex.
In short, gender was used exclusively as a negative phenomenon, i.e. the combined system of preconceptions, stereotypes and expectations linked to sex. In the CEDAW, sex is always sex, and gender is not used as a ‘polite’ synonym of sex. In the Vienna Declaration, gender is used either in its negative connotation (gender-based violence, gender bias, gender-specific abuses) or as a synonym of sex (gender-specific data). None of the above mentioned documents mention transgender women, or the term gender identity.
In the 2007 Convention on the Rights of Persons with Disabilities gender has three meanings: synonym of sex, the negative phenomena associated with sex, and a ‘gender perspective’ so an approach to policy informed by the differences between men and women. Still no reference to gender identity or to transgender (or cis, cisgender). In the 2007 International Convention for the Protection of All Persons from Enforced Disappearance the word gender is used only once, as a synonym of sex (‘balanced gender representation’). As a significant category, together with race, religion, nationality etc, the Convention sticks to the use of the term ‘sex’.
In his summary of the findings, the IE claims that
Under this definition [the sociocultural constructs that assign roles, behaviours, forms of expression, activities and attributes according to the meaning given to biological sex characteristics], gender and sex do not substitute each other, and gender identity and gender expression are inextricably linked to them as practices of concern in anti-discrimination analysis.
Gender identity is mentioned as if it had already been explained and defined, and used in legal texts, and as if it is legally relevant in an anti-discrimination analysis. It is not. Women are not discriminated against on the basis of their gender identity, but on the basis of their sex, as the CEDAW recognises. Gender is the tool of oppression, not the reason of the oppression.
Specifically, as we have seen, it is not true that gender and sex never substitute each other. Analysis of the sources shows that gender and sex sometimes are used interchangeably. The IE claims to derive a definition from the analysis of the sources, while in reality the definition does not correspond at all to the actual use of the term in the sources, as I have shown both that the term is never used in the positive connotation claimed by the IE and that it is at times used as a synonym if sex.
The next step is to neutralise the term gender and strip it of the meanings associated with sexism. That is, the feminist use of gender to refer to ‘gender roles’ attributed on the basis of sex and limiting the life aspirations and the rights of women. The IE therefore claims that gender does not necessarily refer only to women. Noone ever claimed that. But it is true that in societies designed by men for men, women are under a lot more pressure to conform to the gender norms (which are designed by men) and their rights are limited to a greater extent. Additionally, only women are exploited because of their sex. The axis of exploitation includes sex, race and class. Men can be exploited because of their race and class. Women because of their sex, their race and their class. This is what intersectionality is really about. So by definition women will always be in a more vulnerable position than men. Even rich women, even queens, would have been forced to have pregnancy after pregnancy because their only role was to provide a male heir. Women’s reproductive ability was exploited regardless of class and regardless of race.
This section of the Report is possibly the most muddled in its theoretical aspects. In order to shoehorn gender identity into international law, the IE has to argue that gender always meant something different from sex (which is not true), that it does not necessarily refer only to women, and yet was developed as a concept by feminists in the 1970s who did not accept biological determinism (as if 1960s feminists did….) and yet it is useful to challenge ‘violent masculinity’ (how it can do that if it does not necessarily refer only to women is left unexplored).
In a completely unexplained logical leap, the IE then claims that, ‘Similarly (sic), nothing in the body of international law suggests that only trans or gender-diverse persons have a gender identity’. This is quite a claim to make, as none of the legal texts listed so far even mentions trans people, gender diverse people or indeed gender identity. Gender identity has not even been defined yet and we are alread told we all have one. International law does not concern itself with beliefs such as gender identity. None of the international sources of international law mentioned so far mentions gender identity, nor cisgender or transgender individuals. How the IE can derive from this complete absence in the sources mentioned so far that international law not only recognises gender identity, but it recognises it as part of the universal human conditions is unexplained and unsupported.
There is indeed evidence that we live in gendered societies, as claimed (p. 11) But this does not mean that power hierarchies and preconceptions become our identity. How offensive to women to tell them that their identity consists of the gender norms they have risked and lost their lives to overcome. Every woman alive will have felt the weight of these gender norms. And now we are told these are our gender identity? The IE goes on to claim that
This process of consolidation of one’s identity has been described, among others, by the Working Group on discrimination against women and girls and by the European Court of Human Rights and the Inter-American Court of Human Rights, all of which have identified the deeply intimate nature of gender identity, and how it is exteriorized through gender expression.
My identity as a woman is built in opposition to these gender norms. My existence as a woman is impervious to any decision I may make. I am a woman regardless of what I do. Nothing I do can change my sex, but this does not mean everything I do must be dictated by the gender norms associated with my sex. My sex is not the external limit to my destiny, dictated by norms decided and designed by men born before I existed.
In the quoted passage gender identity is described in neutral to positive terms as a deeply intimate thought process that is then expressed externally in gender expression. The agency of women, which is denied by gender norms, is resurrected as gender identity, so that women’s gender oppression is naturalised as an identity. From biological determinism to gender determinism? How does the deeply negative concept of gender become neutralised by its distillation into a gender identity that is our own subjejctive creation, instead of an exogenous imposition?
I will stop here for now. Next post we will see how gender identity starts making an appearance in international legal documents.
"and that it is at times used as a synonym if sex."
I presume you mean of there. Your paragraph 10.
It is indeed interesting that gender as identity is just dropped in fully formed as though it was always there. Thus it is indeed unsupported.
Fascinating and infuriating. Did the Yogyakarta Principles definition come about as a result of polling? Who exactly was consulted? How did they come to believe “all persons” have this “deeply felt” identity? And they were appropriating language used to describe extremely rare DSDs as far back as 2006?!
Looking forward to the next installment.