Sexual Orientation and Gender Identity: A Necessary Conceptual Framework for Advancing Rights?

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arvind narrain 2  By Arvind Narrain

 

Introduction

The Human Rights Council is poised in 2016 to consider a third resolution on sexual orientation and gender identity. The proposed resolution will be a follow up to the two landmark resolutions on sexual orientation and gender identity, which were adopted by the Council in 2011 and 2014.

What has been well established at the Human Rights Council through the two resolutions as well as the reports of many Special Rapporteurs is the framing of the discrimination and violence faced by LGBT people within the language of sexual orientation and gender identity. (SOGI)

This piece will seek to trace out the relatively recent history of the use of this language in international law and then seek to understand what this conceptual framework enables.

There has been a vigorous civil society debate on whether the language of SOGI is adequate and the need for a ‘wider’ framing in terms of sexual rights. This piece will seek to evaluate what the conceptual framework of SOGI can accomplish and why a sexual rights framework while necessary would be inadequate in and of itself. This piece will finally argue that we need to see SOGI and sexual rights as complementary and intersecting ways of framing violence and discrimination, with a victory in one sphere opening out the space in the other.

 Sexual orientation and gender identity in international law

In 1992, in Toonen v Australia[1], the Human Rights Committee found that the anti sodomy law of Tasmania was violative of provisions of the International Covenant on Civil and Political Rights.(ICCPR) The Committee found that Tasmania’s sodomy law violates the right to privacy in the International Covenant on Civil and Political Rights. The Committee also explicitly observed that ‘the reference to “sex” in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation.’ This brief finding, (without any further explanation) in effect read the reference to sex in the equality (Article 2) and non-discrimination clauses (Article 26) of the ICCPR as inclusive of ‘sexual orientation’.

While the concept of sexual orientation was first articulated in international law in 1992, it took longer for the concept of gender identity to be recognized. In fact as late as 2003 when Brazil proposed a resolution at the then Commission on  Human Rights on ‘Human rights and sexual orientation’, the resolution ‘expressed deep concern at the occurrence of violations of human rights in the world against persons on the grounds of their sexual orientation.’[2] (Italics added) Gender identity was wholly absent from the framework of international human rights law.

The breakthrough in terms of introducing the notion of gender identity had to wait until the release of the ‘Yogyakarta Principles on the application of international human rights law to sexual orientation and gender identity’ in 2007. The Yogyakarta Principles sought to distill the current state of international law as it now applied to persons discriminated on grounds of sexual orientation and gender identity in the form of twenty nine principles traversing a range of rights including civil, political, social, cultural and economic rights. The principles for the first time in international law defined both the terms ‘sexual orientation’ and ‘gender identity’ thereby enunciating how one’s rights could be violated on the above-mentioned grounds.

This breakthrough in the Yogyakarta Principles of introducing the notion of gender identity for the first time in international law has a lot to do with the fact that the issue of gender identity was persistently articulated as a key concern by LGBT activists from the global south. It was their persistence, which ensured that the Yogyakarta Principles made a leap (in international law terms) and introduced the notion of gender identity.

What followed in the wake of this conjoining of the notions of sexual orientation and gender identity in international law was the historic 2011 resolution sponsored by South Africa which ‘requested the United Nations High Commissioner for Human Rights to commission a study, to be finalized by December 2011, documenting discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity’.[3] (Italics added)

By now the conceptual linkages between ‘sexual orientation’ and ‘gender identity’ was well established and the follow up resolution in the Human Rights Council in 2014 also ‘called upon the Office of the High Commissioner to update the previous report of the High Commissioner on sexual orientation and gender identity’. (Italics added)

Each of the salient landmarks in the development of the concept of SOGI in international law has behind it a history of struggle. The fact that these concepts are now a part of international law is the result of years of struggle by LGBT activists who sought to visibilize the violence and discrimination inflicted upon a seemingly amorphous group of people on grounds of their sexual orientation and gender identity.

 What do the notions of sexual orientation and gender identity enable?

To understand the breadth of what the terms sexual orientation and gender identity could encompass it would be useful to go back to the definitions of the two terms embodied in the Yogyakarta Principles:

‘sexual orientation’ refers ‘to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.

‘gender identity’ to refer 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 by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.

The Yogyakarta Principles filled a crucial gap as even though international law used these concepts it never defined them. For example, Toonen used the term ‘sexual orientation’ without quite clarifying what it meant. The fact that the Yogyakarta Principles defined these terms was eagerly seized upon by jurisdictions around the world.

In Argentina the historic Gender Identity law borrowed its definition of gender identity from the Yogyakarta Principles. [4] In India the Delhi High Court judgment in Naz Foundation v. NCR Delhi[5], reading down Section 377 of the Indian Penal Code as well as the Supreme Court judgment recognizing transgender rights in National Legal Services Authority v. Union of India[6] (NALSA) both cited the Yogyakarta Principles.

Beyond the citational value it must be noted that the NALSA judgment implicitly drew upon the Yogyakarta language in defining the freedoms protected by the constitution. As the Court observed:

Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self-identified gender. Self-identified gender can be expressed through dress, words, action or behavior or any other form. No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution.[7]

The language the Court adopted in its crucial finding that the freedom of expression included the freedom to express self-identified gender through ‘dress, words, action or behavior’ echoes the Yogyakarta definition of gender identity which includes the right to express one’s gender through ‘dress, speech and mannerisms’.

The terms ‘sexual orientation’ and ‘gender identity’ have transitioned from international law back into domestic law opening out new ways of interpreting existing constitutional texts (India) and have also been incorporated into domestic statutes (Argentina). The language of sexual orientation and gender identity as defined in the Yogyakarta Principles could potentially open out many more domestic doors in the years to come.

While the definitions of sexual orientation and gender identity have increasing purchase in the circles of law and policy both international and domestic, do they satisfy activist longings? The horizons of what is possible are constantly challenged by civil society who dream bigger and larger than what states can allow for. Often there is a gap between what a utopian activist imagination calls for and the narrower language of the law.

How does one evaluate the concepts of sexual orientation and gender identity in this light? What is the range of identities, acts, behaviours which should be protected by law from violence and discrimination and where do these concepts fall short?

With respect to sexual orientation the debate within the community has been whether the protection of identities ends up excluding those who do not identify as gay or lesbian, but may engage in sexual acts with those of the same sex. What activists have rightly identified is that an exclusive focus on identities will negate the fact that in large parts of the world people may not identify as gay or lesbian, but are subjected to violence and discrimination on grounds of the sexual acts which they perform. The question is whether the concept of sexual orientation as defined by the Yogyakarta Principles is broad enough to encompass both acts and identities?

A close reading of the definition of sexual orientation indicates that it encompasses two notions:

-each person’s capacity for profound emotional, affectional and sexual attraction between people of the same gender, different gender or more than one gender.

-forming of sexual and intimate relations between people of the same gender, different gender or more than one gender.

The first notion hints at a realm which is not in that of actions but of feelings, emotions and attractions. What is encompassed within the definition of sexual orientation are sexual feelings, emotions, affections and attractions. This aspect of the definition by pointing to the ‘profound capacity for emotional, affectional and sexual attraction’ hints at the psychological aspect of sexual orientation. While the word profound is read with ‘sexual, emotional and affectional’ it communicates a dimension which is linked to the sexual but also belongs to another domain in which sexual acts have deep meanings for those engaging in them. Thus sexual acts are not sexual acts alone but expressive of something more fundamental such as notions of identity and personhood.

The second notion brings sexual orientation back into the body as it were clearly pointing to ‘the forming of sexual and intimate relations between people’ as an aspect of sexual orientation. Within this notion, one is not necessarily talking of the aspect of identity and personhood but rather the formation of sexual and intimate relations between people as integral to sexual orientation Thus crucially one need not be gay or lesbian to come within the rubric of sexual orientation, one only needs to form sexual relations with those of the same sex, thereby opening out protection to those who fall outside the framework of identity.

Thus these two aspects of the definition point towards the diversity of the grouping which is affected by state and societal prejudice. It encompasses those for whom sexual attraction is part of their personhood and very identity and those who may not identify as gay or lesbian but whose sexual relations and sexual acts exposes them to societal ridicule and state discrimination. By phrasing the notion broadly, the concept provides protection to the diversity of acts and identities within the LGBT community.

Coming to the term ‘gender identity’, one of the dividing lines within the community is on the question of who is encompassed by the definition of transgender. One of the principle issues is whether protection is only for those who alter their bodies to bring it in line with their deeply felt gender or is it also for those who do not wish to alter their bodies but choose to express their gender through dress, comportment and mannerisms?

The definition of gender identity in the Yogyakarta principles is phrased broadly to encompass this diversity within the LGBT community. It can be read as including two groupings:

-Those who choose to go in for a ‘modification of bodily function or appearance by medical, surgical or other means’ to bring their body in alignment with their ‘deeply felt internal and individual sense of gender’;

-Those who choose to express their ‘deeply felt internal experience of gender’ not through bodily modification but through ‘dress, speech and mannerisms’.

The definitions of sexual orientation and gender identity in the Yogyakarta Principles carefully avoid the trap of protecting only established identities like gay, lesbian, bisexual or transgender and expressly broaden the protection to a wide range of people all of whom could be targeted for either their sexual behaviour, sexual acts, sexual identities, gender expression or gender identity.

The broad phrasing of the Yogyakarta definition does justice to this plurality of identities, bodies and expressions which are grouped under the terms ‘gender identity’ and ‘sexual orientation’. These two concepts are a broad tent under which diversity can shelter.

Limitation of a Sexual Rights framing for SOGI issues

The SOGI framing is sometimes critiqued as not being inclusive enough and the concept of a sexuality mandate or a sexual rights mandate is put forward as a more inclusive framework. This again needs to be tested more closely.

The strength of a sexual rights mandate is that it provides a framework under which a host of issues can come together. It could include comprehensive sexuality education, sex workers rights, LGBTI rights and abortion rights. As such it offers the alluring prospect of an even broader tent which can encompass a diverse range of issues.

While it is important that a sexual rights mandate be established as a way of taking forward struggles to which most progressive groups are committed to, it would be a mistake to see the sexual rights framework as being adequate to answer the concerns of the range of sub groups on whose behalf it claims to speak on.

Looking at it from the point of view of the struggles around sexual orientation and gender identity, a sexual rights framing leaves out some aspects to which a SOGI framework is more sensitive to. To highlight just two immediate concerns.

A sexual rights framework removes from the equation the dynamic equilibrium between sexual and orientation. As noted above, the Yogyakarta definition of sexual orientation allows for the interplay between the ‘sexual’ and the question of identity and personhood. In a narrower sexual rights framework, the depth which the concept of identity and personhood yields is sacrificed for the breadth that a sexual rights framework may achieve. A sexual rights framing also does disservice to the notion of gender identity. As noted above, people are targeted by both the state and civil society on grounds of their gender expression which may or may not have anything to do with their sexuality. To frame concerns around gender identity in terms of sexual rights is reductive as the complex interplay of gender expression and identity, may have little or nothing to do with a sexual rights framework.

In a concrete sense the implications of reducing the LGBT question to a sexual rights question alone are dangerous. Progress the world over has been based on the fact that activists have been able to always insist that one is talking about an issue which is about a ‘sexual right’ but is also about something more.

The dangers of limiting the question of what it is to be LGBT to the right to have sex is best seen in litigation around sodomy laws. A dyad of decisions, by the US Supreme Court and the Indian Courts illustrates this point.

In 1986 the US Supreme Court in Bowers v. Hardwick[8] upheld the anti sodomy law in Georgia and it took the court till 2003 to reverse its position and strike down the Texas anti sodomy law. While much did change in the US in the intervening period, what is to be noted is the way the judges choose to frame the challenge to the law in the two cases.

In 1986 the US Supreme Court upheld the Georgia anti sodomy law by holding that the ‘Constitution does not confer upon homosexuals a fundamental right to commit homosexual sodomy.’ In this case there was no recognition of the fact that LGBT people existed and that there was a complexity to LGBT existence which could include sexual acts, identities and expressions. By reducing LGBT existence to what the judges saw as ‘homosexual sex’, the sodomy law was upheld.

In the 2003 decision in Lawrence v. Texas[9], which struck down the Texas anti sodomy law, the judges choose to frame the challenge to the anti sodomy law more broadly. The Lawrence court in fact expressly held that Bowers was wrong in concluding that the issue before it was about ‘the right to engage in certain sexual conduct’. The Court held that:

Although the laws in­volved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct sexual behaviour.[10]

The Court sees the freedom to engage in sexual acts of one’s choice as linked to integral aspects of the human person. As the Court notes:

Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.[11]

The dyad of Indian cases illustrates the same challenges in reverse. In Naz Foundation v. NCR Delhi [12], the Delhi High Court read down the anti sodomy law and in Suresh Kumar Koushal v. NCR Delhi[13] the Supreme Court reinstated Section 377 of the Indian Penal Code.  The reason behind the decisions is apparent in the way the Courts choose to frame it.

In Naz Foundation, the Delhi High Court read down Section 377 on the ground that it violated the right to life, the right to equality and the freedom from non discrimination. As the Court put it:

In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21. Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution.[14]

It is precisely this connection between sexual acts, dignity and personhood which is denied by the Supreme Court in its decision. The key reasoning of the Supreme Court in Suresh Kumar Koushal was that:

Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.[15]

When LGBT lives are reduced to the question of sexual acts it makes very difficult any progress on expanding the rights of the LGBT community. It might be possible to conclude that progress at the legislative and judicial level on the agenda of the rights of LGBT people requires that the issue be framed more broadly than sexual rights. The importance of the link to identity and personhood in moving the agenda of violence and discrimination suffered by LGBT people forward cannot be underestimated.

 The complementary and intersecting nature of the struggles based upon SOGI and sexual rights

The limitations of the sexual rights framework have been highlighted to indicate that SOGI cannot be subsumed within sexual rights. This is not to cast doubts on the value of a sexual rights framework.

The independent value of a sexual rights framework is to bring to the fore a marginalized concept in many cultures and contexts. It is shameful or embarrassing to talk about sex in many cultures and going against a dominant sexual morality can result in harsh consequences inflicted by both state and society. The kinds of harsh punishment which those who violate a dominant sexual morality face, tell us that it is important to take seriously that there is a sexual system with its own mores and rules and violation of which can have terrible consequences.[16]

By talking about sexual rights one is implicitly gesturing to an underlying system of sexuality. Sexual rights are really an assertion to the right to express one’s sexuality in multiple and diverse ways without fear of retribution.

A sexual rights framework will advance a thinking of sexuality in and of itself as a serious zone of rights violation. By putting up the broad tent of sexual rights, there is the potential of bringing together multiple struggles all of which have sexuality as an element. Thus sex workers rights, abortion rights and LGBTI rights are examples of struggles which involve an aspect of sexuality.

While it is an important goal, what would be a mistake is to see that each of these struggles could be subsumed under the sexuality framework for some of the reasons mentioned above. One should see sexual rights as a complementary and intersecting framework with the SOGI framework with progress on either end only opening out the debate and taking a progressive agenda forward.

 

[1] CCPR/C/50/D/488/1992

[2] E/CN.4/2003/L.92

[3] A/HRC/RES/17/19

[4] Article 2 of the Gender identity law states that gender identity ‘is understood as the internal and individual way in which gender is perceived by persons, that can correspond or not to the gender assigned at birth, including the personal experience of the body. This can involve modifying bodily appearance or functions through pharmacological, surgical or other means, provided it is freely chosen. It also includes other expressions of gender such as dress, ways of speaking and gestures.’

[5] (2009)160 Delhi Law Times 277.

[6] http://supremecourtofindia.nic.in/outtoday/wc40012.pdf

[7] Ibid.

[8] 478 U.S. 186 (1986)

[9] 539 U.S. 558 (2003)

[10] Ibid.

[11] Ibid.

[12] (2009)160 Delhi Law Times 277.

[13] 2013 (15) SCALE 55: MANU/SC/1278/2013.

[14] (2009)160 Delhi Law Times 277.

[15] 2013 (15) SCALE 55: MANU/SC/1278/2013.

[16] See Gayle Rubin, Thinking Sex: Notes towards a radical theory, www.feminish.com/wp-content/uploads/2012/08/Rubin1984.pdf