Contested Subjects of Human Rights: Trans‐ and Gender‐variant Subjects of International Human Rights Law

Published date01 September 2021
AuthorSandra Duffy
Date01 September 2021
DOIhttp://doi.org/10.1111/1468-2230.12633
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Modern Law Review
DOI:10.1111/1468-2230.12633
Contested Subjects of Human Rights: Trans- and
Gender-variant Subjects of International Human
Rights Law
Sandra Duy
Gendered identities and gender variance have become a regular subject of the discourse of the
United Nations human rights protection mechanisms.This ar ticle exploresthe manner in which
gender identities are discussed, constr ucted, and regulated by the international human r ights law
system. Through use of postcolonial and feminist theoretical lenses,it argues that the emergence
of multiple gendered identities into the legal mainstream has required the United Nations hu-
man rights bodies to expand their concepts of gender and to develop a new vocabulary and
jurisprudence of gender variance. The article examines the language used in the construction
of gendered subjects and its relationship to dynamics of state and postcolonial power. It also
introduces the concept of the ‘cisgender matr ix’ to international human r ights law,expressing
the hierarchical social privilege given to binary,stable gendered identities over gender-variant
ones.
INTRODUCTION
In 2018, the United Nations Independent Expert on Sexual Orientation and
Gender Identity issued a report on the human rights of gender-diverse commu-
nities and persons, stating that,‘[s]elf-deter mined 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.1The
Independent Exper t was, in this report, giving voice to the growing movement
advocating for the recognition and rights of gender-variant persons. Gender
recognition laws and the auxiliary rights of gender-variant persons have be-
come the subject of intense debate in many domestic jurisdictions, as expanding
conceptions of gendered identity and its permutations reach the arena of the
courts.2The varying approaches taken by members of the international com-
munity of states pose an additional challenge to the institutions of international
Dr Sandra Duy is Teaching Associate, School of Law, University of Bristol. The author expresses
her thanks to Professor Siobhán Mullally for her support and feedback from the earliest incarnations
of this work, as well as to the reviewers for their constructive and helpful comments.
1 UN Independent Expert on Sexual Orientation and Gender Identity, ‘Report of the Indepen-
dent Expert on Protection against Violence and Discrimination Based on Sexual Orientation
and Gender Identity’ (UN General Assembly 2018) A/73/152, para 21.
2 This has not been a universal experience, but it has been prominent in some jurisdictions such
as the media-led reaction to the Gender Recognition Act 2004 in the United Kingdom and in
the ‘gender ideology’ backlash currently being experienced by Eastern European jurisdictions
such as Poland, Hungary,and Bulgaria.
© 2021 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2021) 84(5) MLR 1041–1065
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium, provided the original work is properly cited.
Contested Subjects of Human Rights
human rights. The disparities of recognition among states have contributed to
the slow uptake of gender identity issues among the Treaty Bodies and Spe-
cial Procedures of the United Nations human r ights system; however,since the
adoption of the Yogyakarta Principles (the Principles) in 2007 and their identi-
cation of a comprehensive right to the recognition of gender, the international
human rights law bodies have come to more broadlyacknowledge the existence
of gender-diverse identities and the rights of gender-variant persons. However,
this uptake has not been without its problems,some of which for m the basis of
the analysis in this article.
Although it is noted most frequently in the context of transgender rights and
identities, gender identity is a universal attr ibute; across cultures, temporalities,
and spatial horizons, societies create and reiterate concepts of gender roles and
expressions. These categor ies are shaped by many factors, including culture, re-
ligion, law, language, and sexuality. Gendered identities should be understood
as the set of all identities, both binary-conforming and non-conforming. The
recognition of, or failure to recognise, gender,can be extremely important for
the gender-variant subject in particular. Access to medical, educational, em-
ployment, or social services can be impacted by a failure to present identity
documents which conform to the gender presentation of the individual. The
importance of appropriate gender recognition to the life of every individual
means that its implementation is a pressing human rights concern. As the United
Nations human rights Treaty Bodies and Special Procedures have begun to be
conversant in the language and practical facets of gender recognition and the
related rights of gender-variant persons, attention has turned to the manner in
which this discourse is enacted, with particular attention to the ways in which
gender-variant persons are constructed and understood as legal actors or as the
subjects of law through such processes. This article will explore the terms in
which gender variance is discussed within the United Nations human rights
system, as well as the frames of references used to construct gendered identities
in international human rights law.
No small amount of commentary exists on the mainstreaming of Sexual
Orientation and Gender Identity (SOGI) as a human rights issue. However,
relatively little of this attention has been dedicated to gender diversity in and of
itself, as it is frequently overshadowed by the combined weight and history of
advocacy around non-heterosexualsexual or ientations.If gender diversity is not
visible,if it only appears in generalisations or as a subheading of a larger categor y,
there is no means to represent the nuances of identities.Thus, we continue to see
gender diversity discussed in broad strokes; attention directedto answering what
are believed to be systemic patterns of rights violations rather than the lived
experience of individuals; and the retention of binarist normative attitudes and
language even among those who are attempting to rectify oppressions imposed
by society at large.
This article presents an analysis of the ‘contested terrain’3of gender-variant
subject formation in international human r ights law. Informed by queer,
3 R. Kapur, ‘Human Rights in the 21st Century: Takea Walk on the Dark Side’(2008) 28 Sydney
Law Review 665.
1042 © 2021 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2021) 84(5) MLR 1041–1065

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