Introduction
Social movements, protests and revolutions have brought the biggest reforms to each era. Gender justice movements for equality dates back the 1700s and the French Revolution that for the first time sought to allow universal franchise for voting. Since then, the world has been a theatre of varying kinds of social movements many becoming globalised having been sparked from localised instances like the Arab Spring or otherwise. However, a major portion of the human population that has consistently been left out has been the transgender community, mostly in terms of security their rights against violence, victimisation and discrimination that has a criminalising dimension to it. This article first attempts to provide a brief idea of the conceptions of gender under the International Human Rights Law (IHRL) regime in general and subsequently attempts to provide the possible reason(s) for the complete ignorance of the world community from engaging in any deliberations with the specific situation of transgender violence wherein the constant interplay of IHRL and its failure to provide protection shall be evident.
IHRL and Gender Conceptualizations
A few developments in the international sphere have given rise to the consideration of gender as perceived under IHRL. However, as Crossman notes this has largely remained bigendered, orthodox, unimpressive, and inconsiderate of the expansive interpretation of the term and mostly a euphemism for women. It took a long time for incorporation of divergent views on gender, gender identity and gender expression into international law.
Gender mainstreaming within the UN framework became a mandate of the world forum from the UN Conference on Human Rights, Vienna in 1993. Hilary Charlesworth and Christine Chinkin describe, “the process involves integrating concerns of gender into all the activities that are funded or undertaken by an organization, and spreading responsibility for gender issues throughout the organization, through appropriate guidelines and training, so that they become an aspect of the routine work of all staff”. However, the gender mainstreaming has been primarily made to mean only the ‘woman’, and the expansive notions of gender like transgender and gender queer have largely been left aside. Out of all such examples one instance can be quoted as the “Expert group meeting on the development of guidelines for the integration of gender perspectives into human rights activities and programmes” of 1995 organized by the UN Centre for Human Rights and UNIFEM. This perspective has only been about the relationship between men and women and that affecting the women. However, Crossman notes that this is a better version than the Rome Statute, because the definition of gender in this meeting did acknowledge the fact that gender is socially constructed.
In this context, a pathbreaking feat was the Special Rapporteur of the Commission on Human Rights on Violence Against Women that has attempted to take an expansive conception of gender within international law. Radhika Coomaraswamy argued for a gender analysis that takes into consideration the multiple forms of discrimination. Coomaraswamy argues for an intersectionality approach for gender that must be cognizant of “other identities”. The attempt shall be to analyze the interaction between the various other facets of a human being like race, caste, economic status and others. Thus, a comprehensive gender analysis is the focus of her proposal. She argues that a comprehensive gender analysis necessitates an exploration of multiple dimensions: the impacts of gender alone, the effects of race on gender dynamics, and the combined influences of gender and race. This analysis should address the nature of violations, the contexts in which they manifest, their outcomes, and the availability and accessibility of remedies for victims.
She also urged that to understand and appreciate her proposal, there is a need to develop new methodologies to identify and address these problems. However, even though the intersectionality approach was emphasized, the report failed to impress upon the significance of the bifurcation of gender and sex. It also failed to clarify the relationship between them which affects the social conditioning and thereupon the interactions that the society has based on that. In that sense, thus, there was no real contribution, but with regard to gender construction, this is surely pivotal.
The ray of hope came in with the formulation of the Yogyakarta Principles of 2007 and the Yokyakarta+10 of 2017. The combined documents ensured the most important right to recognition before law and finally rest to peace the search for definition of gender. Furthermore, the difference between gender and gender identity was also recognized explicitly, the latter being addressed as an individual’s profound internal experience of gender, which may or may not align with the sex assigned at birth. It encompasses one’s personal sense of their body as well as various expressions of gender, such as dress, speech, and mannerisms. At the same time, it took into account the diversity in culture and through the notions of cultural relativism, it did try to understand the complexities of gender.
Most importantly, this shows that for the first time distinct, separate, and autonomous features of self. It was prompted to answer a very pertinent question as to whether it was possible to have a society without cultural Western notions of sexual orientation and gender identity because their society was a free one. It also noted that state registration of sex (as gender) itself is the root cause for this problem for which movements have been ongoing for a long time. Critics have expressed concern over the underlying bigenderism as a problem within Yogyakarta Principles and to them this document fails to take a clear perspective that augments for expansion of the notion of gender and not be subordinate to the system of two genders. It opined that gender and sexuality are arbitrary and should be done away with. Even though Yogyakarta principles represent freedom it does not ensure the truest freedom for this community of people. There is much work yet left to be done even though a remarkable journey has been undertaken by this community and the human rights activists in general.
Violence against transgender community and international law significance
While the state of conceptions of gender in the international human rights law documents have remained myopic as explained earlier, the continued violence against the transgender community has remained an ignored subject with no trace of international community showing any interest in encapsulating them like it has for decades documented, deliberated and resolved violence against women and children. This becomes pertinent in the present times because the level of atrocities today has escalated to unthinkable degrees. Approximately, 350 transgender persons being killed in 2019, 1731 murders were reported in the span of seven years from 2007 to 2014 as recorded by Human Rights Watch and cases of all other kinds of violence and victimization recorded by TGEU from 2015 to 2021 depicts the increasing scale of violence. Significant is the fact that every year, there has been growth in the number of reported cases on transgender violence. When these figures are collated with the proportion of the transgender population as such in the world whose composition is close to 3% to 4% or even less, the gravity of the situation at hand could possibly be comprehended. Yet, we do not have any universally binding international document in the vast ocean of international human rights law that can be taken aid of and states be made liable for human rights violations of transgender persons like that of special treaties- CEDAW or CRC or CMW for women, children and migrant workers respectively. Certainly, they are ‘ignored subject-matter’ of state prerogatives.
With regard to the intervention of international human rights law, the recent such instance ironically happens to be the most regressive one in terms of the construction of gender. To elaborate, despite decades of movements to gain recognition, international consideration and respect for the gender variant and sexual minorities, the International Criminal Court Statute of 1998 (Rome Statute) that established the Court in 2002 has explicitly denied an expansive interpretation of gender. Even though it had the scope to consolidate the outcome of the movements (which by the 1990s had gained much significance and international affirmation), a larger impact of protection could be ensured, it failed to appreciate the difference between gender and sexuality. While it did recognise the crime of Gender Persecution, it limited and restricted the same to only the biological sexes completely denying “gender” as such- reflection of quite a stereotypical conditioned notion of sex and gender to mean the same. Quite unfortunately, the nations opposing this incorporation were fearful of homosexuality being taken within the jurisdiction of the court, they vehemently opposed it.
The only positive step in this regard is the establishment of the Special Expert on Sexual Orientation and Gender Identity in 2018 by the United Nations Human Rights Council. The mandate of the Special Expert has been laid down clearly therein. This poignantly showcases the degree of the atrocities undertaken across the world that finally after years of pride march and protests across the world, a status of this kind has finally been accepted. This attests the fact that gender constructions have until very recently been myopic and that international law is lagging far behind in making any effective protective mechanisms for protection of human rights of a significant portion of the human populace. As of now, the only aid available to transgender persons is to seek domestic legal protection which, in the opinion of the author, is inadequate owing to lack of international accountability sans any internationally binding document in place laying down obligations of nation-states.
Conclusion
The ill-conceived world has largely been bigendered with animosity towards transgender persons. In the modern world, the acceptance of ‘human’ beings who are not so categorised has been a recent development. In fact, very less significant progress had been made on the legal front that seeks to protect transgender persons against violence and victimisation and the countries that have taken the initiative towards protection of their safety, the laws have remained in letters only without any effective and adequate implementation and/or even dissemination of information aimed at empowerment of the community that are mostly outcasted. This has primarily been because of the narrow understanding of gender for centuries. But newer attempts are now being taken to redress and provide for succour to transgender persons. It is only time that will denote whether undoing of the “historical injustices” are being effectively undertaken with a much active involvement of the international community and active adoption and implementation of international human rights law documents, existing and newer ones (maybe to be developed) contributing to the larger developing human rights jurisprudence.
Dr. Somabha Bandopadhay teaches at The West Bengal National University for Juridical Sciences (WBNUJS), Kolkata where she also completed her doctoral work. An awardee of the Indo-Canadian Shastri Mitacs Scholarship she pursued research on victimization of transgender persons at the School of Criminology, University of Montreal, Canada. She pursued BA.LLB (International Law Honors) from School of Law, KIIT University, Bhubaneswar and pursued LLM (Human Rights Law) from National Law School of India University (NLSIU), Bangalore. She was awarded the Nani Palkhivala Memorial Gold Medal at NLSIU Bangalore and the Chancellor’s Gold Medal and Nanibala Devi Memorial Gold Medal at KIIT University. She has more than fifteen research publications to her credit including a few in Scopus indexed journals and numerous blog and magazine articles. She regularly undertakes trainings of police officials, judicial officers and advocates in India on transgender sensitisation.
Photo: Shonagh Rae for NY Times.
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