Where Are We Now with the Definition of Gender Identity?

Işıl Aral

Definitions are fraught with difficulties. While they aim to clarify the meaning of a word, they rather confine the concept within strict borders. They function as a tool of inclusion and exclusion to draw boundaries in our minds. This does not mean, however, that a particular set of words helps to fix the meaning of a certain concept. Linguistics have long shown the indeterminacy of language by explaining how meaning is relational and is in constant need of interpretation. In the legal domain, definitions become even more important since this is how we set boundaries to determine what is allowed or prohibited, and what regulates human behaviour. International lawyers are notorious for avoiding definitions. Once a definition is set, it is hard to transgress its limits and alter what should be included or excluded in that sphere. To maximise the area of manoeuvre, the absence of definitions in international law, even for the most basic concepts, is something to be celebrated rather than deplored. The less boundaries we have, the more we can play around with the meaning of legal terms with reference to an abundant volume of sources that might at times provide very diverging interpretations.

While gender identity has been on the agenda of human rights lawyers for more than 40 years now, we still do not know exactly what this term means from an international law perspective. This post discusses how the lack of a legally binding document that provides a definition for gender identity is indeed beneficial for the evolving and fluid meaning of the term. It particularly focuses on the dialogue between the group of human rights lawyers that drafted the Yogyakarta Principles, and the Inter-American Court of Human Rights. This dialogue between a group of experts and a regional human rights court shows how different bodies with different roles can work in tandem to create, develop and elaborate on the scope of an expression that is so commonly used in human rights law, despite the lack of clarity regarding its exact meaning.

 

What does Gender Identity Mean?

Gender equality discussions first began with a focus on women.[1] In international law, women’s rights were widely discussed in human rights platforms including the early days of the United Nations. The focus, however, shifted solely from women to gender over time.[2]  It was significant that in 1993, the outcome document of the Third World Conference on Human Rights in Vienna, namely in the Vienna Declaration and the Programme of Action, included terms that referred to gender, such as gender bias and gender-based violence.[3] Gender identity is another term that gained prominence over time in discussions on equality and non-discrimination. In human rights law scholarship, there are several interpretations as to what gender identity means. While the term is commonly used in soft law documents including several UN instruments, there is no binding international instrument that provides any clarity to the scope of gender identity. The Istanbul Convention is the first hard law document providing a definition of gender but falls short of defining what gender identity means.[4] When it comes to human rights protection mechanisms, on several occasions the European Court of Human Rights,[5] the Inter-American Court of Human Rights[6] and the Human Rights Committee[7] have declared that gender identity can be an unjustified ground for discrimination. Despite the sheer volume of references to the concept of gender identity in international documents, there is not yet a clear definition of the term.

A group of human rights lawyers arrived at an agreement about the meaning of gender identity when they gathered in 2006 in Yogyakarta, Indonesia to discuss how human rights law applies in relation to sexual orientation and gender identity. They proclaimed a set of principles to clarify the scope of states’ obligations under human rights law to prevent discrimination on grounds of sexual orientation and gender identity.[8] Chaired by Professor Michael O’Flaherty, the group of human rights experts that drafted the principles included academics, judges, UN Special Rapporteurs, members of UN treaty bodies and activists. At the end of the conference, they unanimously adopted the Yogyakarta Principles that address a wide scope of issues including extrajudicial executions, torture, non-discrimination, rights to freedom of expression and assembly, employment, health, education and immigration.[9] In 2017, the Yogyakarta Principles +10 was adopted in order to address recent challenges faced on the basis of sexual orientation and gender identity and to provide more elaborate principles in the application of human rights rules in relation to gender expression and sex characteristics.[10] As a document adopted by a group of experts, the Principles do not have legal bindingness on states. The Preamble of the Yogyakarta Principles states that gender identity refers 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’.

Several international law documents including the General Comment 20 on non-discrimination of the Committee on Economic, Social and Cultural Rights,[11] the Council of Europe Commissioner for Human Rights Report on human rights and gender identity,[12] the ‘Law of Inclusion and Practices of Exclusion’ report of the UN Special Rapporteur on Sexual Orientation and Gender Identity,[13] and the UNHCR Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees[14] explicitly refer to the definition of gender identity as set by the Yogyakarta Principles. A publication by the UN Office of the High Commissioner for Human Rights (OHCHR), ‘Born and Equal’, cites the Yogyakarta Principles as an important source clarifying the scope of states’ obligations regarding sexual orientation and gender identity but provides its more modest definition for the latter expression. According to the OHCHR, gender identity ‘reflects a deeply felt and experienced sense of one’s own gender’.[15]

 

The Inter-American Court of Human Rights Moving a Step Further

The Inter-American Court of Human Rights (IACtHR) dealt with the issue of gender identity at length in its ground-breaking Advisory Opinion OC-24/17 delivered in 2017.[16] The Advisory Opinion was requested by Costa Rica who posed five questions to the Court concerning, in a nutshell, the name change of an individual in line with their gender identity and patrimonial rights of same-sex couples. With this Advisory Opinion, the Court has become not only the first human rights court to declare that states are under an obligation to recognise same-sex marriage but also provided a record of significant remarks about the meaning of gender identity.[17] In comparison to the European Court of Human Rights, IACtHR adopted a more progressive approach to the meaning of gender identity. The Court emphasised that a person’s name, sexual orientation and gender identity are fundamental parts of an individual’s personality. The Court stated that article 18 (right to a name), article 3 (right to juridical personality), article 7 (right to personal liberty), and article 11 (right to privacy) of the American Convention on Human Rights protected everyone’s right to the change of name, the rectification of the image and the rectification of the sex or gender in the public records and identity documents.[18] The Court made a powerful statement by indicating that the free and informed consent of the person concerned was enough to request these changes and that no other documentation, such as medical, psychological or psychiatric certificates, were required. The Court affirmed that a contrary practice would signify that self-identifying with a different gender identity than the sex assigned at birth is a pathology.

The Court affirmed that the recognition of an individual’s dignity depended on allowing everyone self-determination by providing the ability to ‘freely choose the options and circumstances that give meaning to their existence based on their own preferences and convictions’.[19] The Court highlighted that the ‘principle of self-autonomy’ prohibited the state from depriving someone of making the choices that give meaning to their life and developing their personality.[20] The Court further added that the principle of self-autonomy regards the person as self-determining and self-governing. It is noteworthy that the Court took the definition of Yogyakarta Principles one step further and emphasised the importance of the principle of self-autonomy. Rather than a patriarchal approach where the state would determine the sex at birth, the Advisory Opinion underlined that among the myriad ways of being, everyone should be free to self-determine the way they want to live and to be as they wish. By using the terms ‘auto-determination’ and ‘self-autonomy’, the Court expanded the meaning of gender identity and recognised that there are no predetermined categories of gender that can fit everyone.[21]

In its interpretation of gender identity, the Court made a reference to the definition provided by the Yogyakarta Principles. Nevertheless, it was careful in its use of the terminology and stated expressly that the definitions provided in the Advisory Opinion were only for illustrative purposes.[22] It is still meaningful that the Court used the Yogyakarta definition as a starting point but then further developed it by making reference to the principle of self-autonomy. By broadening the scope of gender identity as determined by the Yogyakarta Principles, the Court affirmed that based on the principle of self-autonomy and self-determination, domestic processes for gender recognition can rely solely on the free and informed consent of the individual and that states cannot require the submission of additional medical or psychological documentation. In other words, the Court depathologised gender recognition by basing the process on the declaration of the individual. As rightly put by Gonzales, by asking the states to transform the gender recognition into a process of a declarative nature, the entire process has been removed from the hands of doctors and judges and replaced into the realm of self-determination of the individual.[23]

 

Concluding Remarks

In 1990, Teresa de Lauretis coined the term ‘queer theory’ and explained that queer referred to an ‘identity without an essence’ and what stands at odds with what is accepted as normal.[24] The approach of the Inter-American Court of Human Rights allows the meaning of gender identity to be explained along the same lines. Gender identity refers to an individual’s auto-determination of their own life, and as such, is too broad of a concept to be confined within strict limits. Since it is not possible to exhaustively provide a list of gender identities, the most accurate way of describing what it means might be by reference to the principle of autonomy as advanced by the Inter-American Court. The Court took the definition provided in the Yogyakarta Principles but then developed it through the principle of self-autonomy and self-determination. The dialogue between the two bodies allowed for the provision of a more elaborate meaning to gender identity, even if it does not impose any legally binding obligation on states. The term gender identity provides an area of freedom for those who do not want to be constrained by terms, determinations or definitions tout court. While law is a profession of naming things, there is no need for a hard law document to instruct states as to how they should understand and apply gender identity. Soft law documents can provide more effective guidance for the ever-evolving content of this expression. A constant contestation of dominant meanings might be more beneficial than a static but binding definition.[25] This also allows for a dynamic evolution of the term which will be free of a particular time’s cultural, legal or political predicaments that would be later on hard to transgress.

 

Sources

Atala Riffo and Daughters v. Chile, Merits, Reparations and Costs, Judgment of February 24, 2012. Series C No. 239

Christine Goodwin v. UK [GC] (2002) 35 EHRR 447

Council of Europe, Commissioner for Human Rights ‘Human Rights and Gender Identity’, 29 July 2009, p. 3, available at: https://rm.coe.int/16806da753

Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (adopted 11 May 2011, entered into force 1 August 2014)

Damian A. Gonzales-Salzberg and Loveday Hudson (eds.) Research Methods for International Human Rights Law (Routledge 2020)

Damian A Gonzalez-Salzberg, Sexuality & Transsexuality Under the European Convention on Human Rights: A Queer Reading of Human Rights (Hart Publishing 2019)

David M. Halperin, Saint Foucault: Towards a Gay Hagiography (Oxford University Press 1997)

Dianne Otto (ed.) Queering International Law (Routledge 2018)

Duque v. Colombia, Preliminary Objections, Merits, Reparations and Costs, Judgment of February 26, 2016, Series C No. 310

  1. v. Australia, Human Rights Committee, Communication No. 2172/2012 (CCPR/C/119/D/2172/2012), 2017

General Comment 20: Non-Discrimination in Economic, Social and Cultural Rights (art. 2, para. 2 of the International Covenant on Economic, Social and Cultural Rights), 2 July 2009, UN Doc. E/C.12/GC/20

Giovanna Gilleri, ‘Abandoning Gender Identity’, (2022) 116 American Journal of International Law Unbound 29

Human Rights Committee, Concluding Observations on Ecuador (CCPR/C/ECU/CO/6) 2016

Human Rights Committee, Concluding Observations on Austria (CCPR/C/AUT/CO/5), 2015

I v. UK [GC] (2003) 36 EHRR 967

Inter-American Court of Human Rights, Advisory Opinion OC-24/17 of November 24, 2017, Requested by the Republic of Costa Rica, Gender identity, and equality and non- discrimination with regard to same-sex couples. State obligations in relation to change of name, gender identity, and rights deriving from a relationship between same-sex couples (interpretation and scope of Articles 1(1), 3, 7, 11(2), 13, 17, 18 and 24, in relation to Article 1, of the American Convention on Human Rights), Series A No. 24

Joel Voss, ‘Contesting Sexual Orientation and Gender Identity at the UN Human Rights Council’ (2018) 19(1) Human Rights Review 1

Marija Antić, Ivana Radačić, ‘The Evolving Understanding of Gender in International Law and “Gender Ideology” Pushback 25 Years since the Beijing Conference on Women’, 83 (2020) Women’s Studies International Forum

Michael O’Flaherty, John Fisher, ‘Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles’ (2008) 8(2) Human Rights Law Review 207

OHCHR, ‘Born Free and Equal: Sexual Orientation, Gender Identity and Sexual Characteristics in International Human Rights Law’, Second Edition, 2019, UN Doc HR/PUB/12/06/Rev.1

The Law of Inclusion and Practices of Exclusion: Report of the Independent Expert Independent Expert on sexual orientation and gender identity, 3 June 2021, UN Doc A/HRC/47/27

The Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, March 2007, available at: http://yogyakartaprinciples.org

Tirado Chase, ‘Human Rights Contestations: Sexual Orientation and Gender Identity’ (2016) 20(6) The International Journal of Human Rights 703

UNHCR, Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity with the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, UN Doc HCR/IP/12/09, 23 October 2012

Vienna Declaration and the Programme of Action, Vienna, 14–25 June 1993, UN Doc. A/CONF.103/9

[1] On the historical shift from women’s rights to gender, see the Science Academy Conferences, Spring 2022 series talk by Deniz Kandiyoti at https://www.youtube.com/watch?v=OS8LB-M62_4.

[2] Marija Antić, Ivana Radačić, ‘The Evolving Understanding of Gender in International Law and “Gender Ideology” Pushback 25 Years since the Beijing Conference on Women’, (2020) 83 Women’s Studies International Forum 2.

[3] Vienna Declaration and the Programme of Action, Vienna, 14–25 June 1993, UN Doc. A/CONF.103/9.

[4] The only reference to gender identity in the Istanbul Convention is in article 4 which prohibits discrimination on the ground of gender identity, see Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (adopted 11 May 2011, entered into force 1 August 2014).

[5] Christine Goodwin v. UK [GC] (2002) 35 EHRR 447, I v. UK [GC] (2003) 36 EHRR 967.

[6] Atala Riffo and Daughters v. Chile, Merits, Reparations and Costs, Judgment of February 24, 2012. Series C No. 239, Duque v. Colombia, Preliminary Objections, Merits, Reparations and Costs, Judgment of February 26, 2016, Series C No. 310.

[7] G. v. Australia, Human Rights Committee, Communication No. 2172/2012 (CCPR/C/119/D/2172/2012), 2017. See also Human Rights Committee, Concluding Observations on Ecuador (CCPR/C/ECU/CO/6) 2016, paras. 11-12, Human Rights Committee, Concluding Observations on Austria (CCPR/C/AUT/CO/5) 2015, paras. 11-12.

[8] The Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, March 2007, available at: http://yogyakartaprinciples.org.

[9] For a commentary of the Principles, see Michael O’Flaherty, John Fisher, ‘Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles’ (2008) 8(2) Human Rights Law Review 207.

[10] The Yogyakarta Principles Plus 10: Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics to Complement the Yogyakarta Principles, November 2017, available at: http://yogyakartaprinciples.org.

[11] General Comment 20: Non-Discrimination in Economic, Social and Cultural Rights (art. 2, para. 2 of the International Covenant on Economic, Social and Cultural Rights), 2 July 2009, UN Doc. E/C.12/GC/20.

[12] Council of Europe, Commissioner for Human Rights ‘Human Rights and Gender Identity’, 29 July 2009, p. 3, available at: https://rm.coe.int/16806da753.

[13] The Law of Inclusion and Practices of Exclusion: Report of the Independent Expert on Sexual Orientation and Gender Identity, 3 June 2021, UN Doc A/HRC/47/27.

[14] UNHCR, Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity with the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, UN Doc HCR/IP/12/09, 23 October 2012.

[15] OHCHR, ‘Born Free and Equal: Sexual Orientation, Gender Identity and Sexual Characteristics in International Human Rights Law’, Second Edition, 2019, UN Doc HR/PUB/12/06/Rev.1, p. 5.

[16] Inter-American Court of Human Rights, Advisory Opinion OC-24/17 of November 24, 2017, Requested by the Republic of Costa Rica, Gender identity, and equality and non- discrimination with regard to same-sex couples. State obligations in relation to change of name, gender identity, and rights deriving from a relationship between same-sex couples (interpretation and scope of Articles 1(1), 3, 7, 11(2), 13, 17, 18 and 24, in relation to Article 1, of the American Convention on Human Rights), Series A No. 24.

[17] Nicolás Carrillo-Santarelli, ‘Gender Identity, and Equality and Non-discrimination of Same Sex Couples’ (2018) 112(3) American Journal of International Law 479.

[18] Ibid., para. 116.

[19] Ibid., para. 88.

[20] Ibid.

[21] Giovanna Gilleri, ‘Abandoning Gender Identity’, (2022) 116 American Journal of International Law Unbound 29. Gilleri argues that from a psychoanalytic perspective, this definition of the Inter-American Court allows for the removal of the unnecessary distinction between sex and gender.

[22] IACtHR, Advisory Opinion OC-24/17, para. 32.

[23] Damian A. Gonzales-Salzberg, ‘A Queer Approach to the Advisory Opinion 24/2017 on LGBT Rights’ in Damian A. Gonzales-Salzberg and Loveday Hudson (eds.) Research Methods for International Human Rights Law (Routledge 2020) 111.

[24] David M. Halperin, Saint Foucault: Towards a Gay Hagiography (Oxford University Press 1997) 62.

[25] Matthew Waites, ‘Critique of ‘Sexual Orientation’ and ‘Gender Identity’ in Human Rights Discourse: Global Queer Politics beyond the Yogyakarta Principles’ (2009) 15(1) Contemporary Politics 137.