Recognition and power: gender variance in international law
by Sandra Duffy
Walking home with a friend a few nights ago, we fell into a conversation about monsters. My friend, Dr Nicola Moffat, had written her PhD thesis on representations of monsters in English literature. Pointing out that the word ‘monster’ derives from the same roots as ‘demonstrate’, she told me that the character that is called a monster is not so much in itself a negative force, but a signifier of something which cannot be understood and named. It is not for nothing that women, pregnancy, and babies are often involved in monster myths – forces misunderstood and even feared by the authors of literature and history becoming vilified and associated with the breakdown of order.
Now, I am not working on literature, on symbolism, or on anything quite so diverting. I’m an international human rights law researcher and I work on issues around gender and sexuality. My conversation with Nicola has remained fresh in my mind because over the course of my studies, I have come to think of law as existing somewhere between a language and a worldview. In many ways, identities legible to the law are conferred recognition and therefore power, while identities, lives, and bodies which the law does not comprehend tend to be marginalised and rendered alienated from society. The delegitimisation and demonising of states that cannot be easily understood seems to be as much a part of modern legal systems as it was to writers and artists making up the literary canon. The problem is not the groups being alienated. The problem is the forces which enable this alienation.
Gender recognition, law, and the sociopolitical question
My PhD research focuses on attitudes toward, and frameworks for, the legal recognition of gender variance in international human rights law. I study the manner in which the international human rights institutions, such as the United Nations Treaty Bodies and Special Procedures and the regional Courts of Human Rights, approach issues around gender identity and legal gender recognition. My work also includes case studies on the situation of gender-variant persons in Ireland and India, in order to demonstrate the effects of globalised human rights discourse on domestic legal systems.
What seems to be a straightforward question of law – can a person legally change the gender on their identity documents in this jurisdiction? – is in fact a sociopolitical question of much complexity, involving religion, history, social dynamics, and the relationship between postcolonial societies and the international community. This relationship is a reciprocal exchange of attitudes of permissiveness or repression, complicating the functioning of legal systems on both the national and the international levels.
Legal gender recognition is the facility offered to persons, whose inner and deeply-felt gender identity does not correspond to the sex assigned to them at birth, to change the gender marker on their identity documents such as birth certificate, passport, or driver’s licence. The inability to perform such a change infringes on the individual’s right to autonomy and to free expression, forcing them into a position where they must either present documentation which does not correspond to their gender expression, or to refrain from presenting in the manner which most reflects their gender identity every time they must interact with social institutions.
In many jurisdictions, it is possible to have one’s documents changed via legal or administrative processes, albeit with conditions attached. In all but a handful of jurisdictions, the choices of gender marker available are solely the binary options of male or female. The legal gender recognition process also almost universally operates under a set of medical or legal gatekeeping procedures, which I will discuss in more detail below.
In referring to the population of persons with a gender identity incongruous with that which they were assigned at birth, I use the terms ‘gender-variant’ for an individual and ‘gender-diverse’ for a population. The term ‘gender non-conforming’ is also in use. Although in this jurisdiction the term ‘transgender’ is the one most commonly applied to the group, from a global view ‘transgender’ is a Western construct which may not correspond to the subtle categories of identities which can vary from culture to culture. Gender-variant, gender-nonconforming, and trans*/trans are terms which allow for the recognition of binary identified male or female persons; non-binary, third-gender, or genderqueer persons; and hijras, berdaches, fa’afafine, and other culturally specific forms of gender diversity.
Gender recognition in Ireland
In Ireland, gender recognition procedures are governed by the Gender Recognition Act 2015. This Act allows for adults to apply for the issuance of a Gender Recognition Certificate from the Office of the Registrar General granting them legal status in the correct gender. A minor aged sixteen or seventeen may make such an application with the consent of their parent or guardian. The application is made on a basis of self-declaration, meaning that there is no medical or psychological evaluation required to determine the person’s gender-variant status before qualification for a Certificate. This principle ranks Ireland among the most progressive European nations in the field of gender recognition, as most other Council of Europe members requires medical or psychological certification or intervention before a person’s gender marker can be changed.
The Act also requires that a review of the law be undertaken in 2017. Among the issues which will be raised this year are the lack of recognition for persons of non-binary gender identities, and the lack of facilities for persons under sixteen to apply for legal gender recognition.
The relative ease with which the GRA 2015 functions belies the two decade-long struggle to enact such a legislation in Ireland, which before the signing of the GRA 2015 had no facility for legal gender recognition in any form. A lengthy campaign of pressure and public-interest litigation from Dr Lydia Foy, along with a fortuitously timed decision of the European Court of Human Rights in Goodwin and I v United Kingdom, allowed for a the 2007 High Court decision in Foy v An t-Ard Chláraitheoir 2, wherein Mr Justice McKechnie held that the Irish government’s failure to allow Dr Foy to change her gender markers on documentation was incompatible with Ireland’s obligations under the European Convention on Human Rights. This ruling was the catalyst for the ensuing lobbying by the Transgender Equality Network Ireland (TENI) to ensure a strong and human rights-compliant legal gender recognition protocol for Ireland.
Gender recognition in international human rights law
Since the early 2000s, gender recognition has steadily been gaining status in mainstream international human rights law. The 2002 Goodwin and I decision was the first to find in favour of a transgender applicant in the European context, and sparked a series of legal reforms across the continent (including the UK’s Gender Recognition Act 2004). The emergence of gender identity as a concern of the United Nations human rights mechanisms began in 2006 with the Joint Statement on Human Rights Violations based on Sexual Orientation and Gender Identity before the Human Rights Council. In 2007, the signing of the non-binding but influential Yogyakarta Principles marked the first declaration of the human rights of persons of diverse gender identities. Since then, the United Nations human rights bodies, such as the Human Rights Committee and the Committee on the Elimination of Discrimination Against Women, have also begun to include the situation of gender-variant persons in their member states during their review procedures.
It is clear that legal gender recognition can confer many benefits on the potential applicant. Without identification documents in the gender corresponding to that in which a person is presenting, access to education, employment, and travel becomes increasingly limited. In order to cross a national border, apply for social benefits, or access healthcare services, they must ‘out’ themselves and risk facing a potentially hostile response. Although sometimes critiqued as conferring mostly formal equality on gender-variant persons, availability or lack thereof in relation to legal gender recognition has a marked effect on the substantive equality of the gender-variant individual in society.
Legal recognition also renders gender-variant persons more legible to the institutions of state and, in turn, to society at large. Owning a body which deviates from the normative gender standards imposed by society places the gender-variant person in a vulnerable position, making it more difficult to secure their status, health, and well-being. Western – by which I mean Euro-/Ameri-centric – societies and legal systems are built on binary understandings of gender. This choice of male or female maps gender directly onto sex, and includes a biological determinist viewpoint wherein the shape of one’s body must dictate how one’s mind conforms to societal gender norms. Theorists such as Butler have described how gender is not predicated on physical traits in this manner; it is a continual performance of acts and manners of expression, less something one is than something one does. Furthermore, the social construct of gender is complex enough that no person conforms perfectly to all expected gender norms at a given time. Logically followed through, this incomplete performance means that, as Butler states, “those permutations of gender which do not fit the binary are as much a part of gender as its most normative instance”.
Legal recognition and societal legitimacy
What impact does this have on legal systems? A system built on a binary lacks space for the grey areas of gender, the non-conforming permutations. Recognition confers power; legal recognition confers status. The law is a system of power dynamics. It creates categories which become, themselves, constituent of identities. In many jurisdictions, for example, it is necessary for a person seeking legal gender recognition to produce medical certification of their gender variance. The requirements for certification can include confirmation that the person has undergone surgical intervention; references from a psychiatrist or psychologist that the person is suffering from “gender dysphoria”, or the medicalised formulation of gender non-conformity; or records of how long the person has been “living in their gender”. For many gender-variant persons, these can be difficult to obtain or mean that they must adjust their presentation or gender expression in order to comply.
Even though the object of these laws is to liberate gender-variant persons from repression, they often internally demand compliance with other norms. For example, in many instances where the law recognises the existence and legitimacy of binary-identified gender-variant persons, those identifying outside the binary, or presenting in a way which is not recognisable to the legal and medical gatekeepers regulating access to recognition find themselves in a difficult position. Lacking recognition by the law means lacking the protection of the law. Marginalised gender-variant persons are more likely to be the subject of discrimination, exclusion, and violence. There is a reciprocal relationship between legal recognition and societal legitimacy: the doors to societal acceptance often depend on one’s legal status, while legal status depends to a large extent on the views of society and lawmakers.
With this in mind, I find it necessary to problematise the human rights law system as it currently stands. To use a phrase gifted to me by the work of another friend, it is important to look at the “decisions of silence” in the language used by law. The question which needs to be applied to emerging frameworks of legal gender recognition is not solely “which groups are being recognised by this law?”, but equally “which groups are not?”. In Ireland, despite our progressive legislation and the greater societal acceptance of the lives of gender-variant persons which have come with it, for the non-binary person seeking recognition it is as if the law has moved no further than it had before the signing of the 2015 Act.
The ‘T’ in ‘LGBT’ should not be silent
In another facet of this area of law which merits examination, there is a tendency for human rights law to refer to the issues concerning gender-variant persons and non-heterosexual persons as a monolithic category under the heading ‘LGBT issues’. This not only erases the spectrums of identity in those communities, but it risks assuming that the same reforms are needed by both. For example, it is often more pressing for gender-variant persons that healthcare be available on an equal basis than for non-heterosexual persons; equally, the right to marriage equality and to start a family is often very welcome to gender-variant persons, but there is still a fundamental lacuna in their recognition if they cannot obtain a correct set of identity documents. My research has shown that this is a persistent problem from the level of grassroots organisations right up to the international human rights bodies such as the United Nations Treaty Bodies and Special Procedures. As many trans* activists state: the “T” in “LGBT” should not be silent.
I believe in law, written in a human rights-compliant manner, as a mechanism for social change. However, even with advances in the law, gender variance continues to be misunderstood by society. The scaremongering recently seen over the right of transgender persons to use the bathroom corresponding to their gender is evidence of this. Lawmakers in the United States have even introduced legislation banning transgender persons from using a bathroom other than the one which corresponds to the gender on their birth certificate, citing a fear for the safety of the cisgender persons also using that restroom.
This brings us back to my thoughts on my friend’s thesis about literary monsters and other various folk devils. Gender-variant persons suffer delegitimisation on many fronts: facing hostility from medical professionals, discrimination in the workplace, the threat of violence, a much higher incidence of socioeconomic disadvantage. Much of this comes down to the vision of the gender-nonconforming body and mind as Other, and the mistrust of that Other. Legal recognition is only one part of the process of demystifying gender variance.
Gender norms are a deeply inbuilt factor in society. They can be used as a form of control; as Foucault stated, ““the norm is something that can be applied both to a body one wishes to discipline and a population one wishes to regularise”. The gender-variant person sometimes seems to appear to lawmakers as an entity to be normalised, regulated, and by naming and recognised, understood. It is the task of human rights lawyers to challenge that viewpoint and to represent gender-variant persons as fully formed rights-bearing subjects; to listen to the voices of the community, and to litigate and legislate according to their wishes.
It would be wonderful to have a conversation about literature and not see in it the manner in which legislators and the public continue to pretend that Otherness is invisible or wrong. Unfortunately, we are not there yet. In the language of fiction, it is possible to represent unknowns by demonising and marginalising them. In the language of law, however, it is vital that we understand that the unknown quantities we discuss are people’s lives, livelihoods, and human rights. We have to challenge the viewpoint that any group of people should be alienated from their rights, and to stand for justice beyond the vagaries of popular opinion – particularly in these frightened and frightening times in which we find ourselves living.
 If you want to learn more, Dr Moffat blogs at monsterivity.wordpress.com and is @NicolaMoffat on Twitter.
 See Judith Butler, Gender Trouble (1990); Bodies That Matter (1994); Undoing Gender (2004).
 As of 2016, this number includes India, Pakistan, Nepal, Bangladesh, Australia, New Zealand, and Malta. View this on a map by Transgender Europe here: <http://transrespect.org/en/map/pathologization-requirement/?submap=more-than-two-gender-options>
 For a global survey on the requirements for gender recognition across jurisdictions, please see ILGA’s Trans Legal Mapping Report: Recognition Before the Law (2016; Chiam, Z., Duffy, S., and Gil, M.G.).
 Case 28957/95.
  IEHC 470.
 First mention of gender recognition law came in the 2008 review of Ireland, at CCPR/C/IRL/CO/3; the Committee has made other observations such as in its 2011 review of Kuwait, on offences of “wearing the clothing of the other gender”, CCPR/C/KWT/CO/2, paragraph 30.
 For example, General Recommendation 33, on women’s access to justice; Concluding Observations from reviews such as that of the Netherlands, at CEDAW/C/NLD/CO/5.
 The work of transgender legal theorist Dean Spade problematises the system of gender classification in its entirety.
 Butler, Undoing Gender (2004).
 See commentary on the UN at <https://sandraduffy.wordpress.com/2016/03/21/gender-identity-at-the-united-nations/>.
 The North Carolina Public Facilities Privacy and Security Act 2016, which applies to all government buildings, including educational institutions.