Gender norms as violating human rights law: The 2018 Report of the Independent Expert on SOGI
UN Reports were caustically characterized by Phillip Alston as “painfully boring… in which everything said is factually correct and yet where nothing really stimulates fresh thinking.” The Report of the Independent Expert on Sexual Orientation and Gender Identity, Victor Madrigal-Borloz which was presented in the General Assembly in October 2018 is anything but that in its willingness to challenge one of the fundamental tenets of socio-cultural life in the modern world, namely the link between sex one is born in and the gender assigned at birth.
Madrigal declares that ‘the notion that there is a gender norm, from which certain gender identities “vary” or “depart” is based on a series of preconceptions that must be challenged if all humankind is to enjoy human rights’. The Madrigal report shows the problematic nature of the social assumption that gender roles and behaviour are determined by sex.
By referencing a range of sources Madrigal makes the case that to persist with the gender norm which neatly divides the world into male and female and assigns gender based on the sex into which one is born into, is to do violence to all those who fall outside the norm. The gender norm itself violates the right to individuality, the right to privacy, the right to identity and a range of socio-economic rights which flow from the right to recognition before the law.
The Independent Expert makes the important case that the pervasiveness of gender as source of identification can violate the right to privacy and integrity of the person. Madrigal challenges the shibboleth that identity documents must have gender as a category. The centrality of ‘gender’ as a marker of official identity documents be it in passports, driving licences or birth certificates, end up stigmatizing those who fall outside the normative expectations of gender. To give an example, the harassment faced by many transgender people by immigration authorities is based on the fact that for example they could ‘look’ female, but the passport says that they are male. If gender was not a category in the passport, there would be no reason for such harassment.
The Independent Expert expresses, ‘significant doubts as to the real need for the pervasive exhibition of gender markers in official and non-official documentation’ and asserts that the survival of the gender marker ‘appears to be fulfilling the vestiges of needs that have long been superseded’. Madrigal makes the point that the need for gender in official identity documents is not a given but must be demonstrated. ‘The simple principle remains that States must refrain from gathering and exhibiting data without a legitimate, proportionate and necessary purpose.’
Of course gender will continue to be a marker of identification especially when persons choose to identify on the basis of gender. The Report documents that the question of the right to choose gender is now entering the legal domain with 10 countries around the world adopting a legislative model of recognition based on self-determination: Argentina in 2012; Denmark in 2014; Colombia Ireland and Malta in 2015; Norway in 2016; Belgium in 2017; and Austria, Brazil and Pakistan in 2018. Since the Report was published, Uruguay and Chile can be added to this list of ten countries adopting self-recognition of gender.
The right to choose one’s gender, Madrigal locates within deeper wellsprings of the human right to individuality. Drawing from the recent advisory opinion OC-24/17,17 the Inter-American Court of Human Rights, Madrigal argues that ‘the very basis of individual rights is the right of persons to be recognized as unique and distinguishable from others.’ The judgment of the Inter-American Court notes that, “consolidating the individuality of the person before the State and before society implies having the legitimate authority to establish the exteriorization of their persona according to their most intimate convictions”. This passage is cited by the Independent Expert to make the point that there is a ‘close connection with self- determination, self-perception, dignity and liberty’ and to conclude that ‘Self-determined gender is a fundamental part of a person’s free and autonomous choice in relation to roles, feelings, forms of expression and behaviours, and a cornerstone of the person’s identity’.
The point the Report is making is that we need to see non normative gender expression not as a pathology but rather as embodying a deep meaning of the right to freedom of intimate choice. As a part of an individual’s right to express a fundamental aspect of their personality, such a choice should be inviolable. If classification systems based on gender violate this aspect of personhood, then these classification systems must change. If states impose barriers right from sterilization to sex reassignment surgery, for a person to be recognized in the gender of their choice, then these requirements need to go.
This thoughtful and nuanced Report also signposts one of the significant challenges to the recognition of the right of transgender persons. Just when parts of the UN system are showing a willingness to rethink some of the core concepts which have marginalized transgender people, the resistance to such rethinking is also building. The Independent Expert ‘notes the emergence in certain regions of the world of a populistic discourse that seeks to delegitimize the plight of persons discriminated against on the basis of sexual orientation or gender identity through an attempt to rebrand the term “gender ideology”.
The point being referenced in no uncertain terms by the Independent Expert is the problematic position being taken by the Trump administration both domestically and internationally. The US Department of Health and Human Services in a memo noted that “Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth.”Activists have also noted that in the recently concluded session of the Commission on Status of Women (CSW62), the USA proposed a similar restrictive definition of gender.
Taking into account these emerging battle lines, this Report of the Independent Expert will be a significant resource for those fighting against current attempts to strip transgender people of their human rights. If one of the objectives of the mandate of an Independent Expert is to produce reports which generate fresh thinking based and chart new direction in international law, this Report fulfils that expectation in ample measure. The struggle now will be to use this pioneering report as a basis to bring about changes in laws and policies at the national level.