The legal definition of gender as ‘the two sexes, male and female, within the context of society,’ might change once and for all. The International Law Commission has recently asked the General Assembly to discard the current definition in international law as part of a new treaty on the prosecution of crimes against humanity; as the primary international body that develops and codifies international law, such a request from the ILC carries both significance and symbolic meaning.
Indeed, such a change faces much controversy. The Commission had previously announced that it would not change any of the definitions from the Roman Statute in the new treaty (one of which being the current definition of gender). Moreover, the majority of countries do not seem to share the view. As of 2019, only seven countries have allowed the legal change of gender on the basis of self-identification alone; many others require psychiatric determinations of gender dysphoria or surgical operations of mutating sexual physiognomies. Were such a change to be made despite such extenuating circumstances, nations would be given greater freedom to define the concept of gender as each sees fit; it would also significantly alter the scope, interpretation, and implementation of international legal protections in an evolving area where norms are yet to be established. Many of what exists have been established through non-binding statements or policy practices over the last few decades; international judicial decisions have also played a significant role as well. The following are several court cases that have progressed (or curtailed) the advancement of LGBTQ rights.
Partner and Survivor Benefits
In Young V. Australia (2003), Edward Young had applied for a war veteran’s dependent pension, only to face rejection from the federal department because the relevant law stated ‘members of a couple’ needed to be of the opposite sexes. The Human Rights Committee found that this violated Article 26 of the International Covenant on Civil and Political Rights ( Article 26 of the ICCPR states that the law shall ‘prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination…based on race, color, sex, language, religion, political or other opinion, national, or social origin, property, birth, or other status.’) While gender identity and sexual orientation are nowhere to be found among the laundry list of personal characteristics, the court recognized them under the classification of ‘other status.’ It thus declared that the State Party provided poor justification as to why excluding same-sex partners fom pension benefits under law while granting them to unmarried heterosexual partners was reasonable and objective.
In the case of X V. Colombia (2007), the Committee similarly noted that ‘the prohibition against discrimination under Article 26 includes discrimination based on sexual orientation, and that denying a same-sex couple’s pension rights on the basis of sexual orientation violates the right to equality and non-discrimination as protected by Article 26 of the ICCPR’.
The European Court has repeatedly found that laws criminalizing sexual relationships between consenting adults of the same sex violate the right to privacy under Article 8 of the European Convention of Human Rights. In Dudgeon V. the United Kingdom (1981), the first case at the ECHR to be decided in favor of LGBTQ rights, male homosexual sex was decriminalized in Northern Ireland. Considering whether or not the State’s actions were 1) in accordance with the law, 2) had a legitimate goal, and 3) were necessary in a democratic society, the Court maintained that the State’s assertions proved unnecessary to protect public morals. It also established that the degree of privacy the former law infringed from a homosexual person was disproportionately large to the general public good it promoted.
The UN Human Rights Committee also reached similar conclusions, as exemplified by the case of Toonen V. Australia (1991). Toonen filed a suit to the Committee, arguing that Tasmanian laws criminalizing consensual sex between adult males in private violated his right to privacy under Article 17 of ICCPR. Though his suit cost him his job as General Manager of the Tasmanian AIDS council, the Committee agreed that Tasmania’s laws breached Australia’s obligations under the treaty. The Commonwealth Government accordingly passed a law overriding the last of Australia’s sodomy laws in Tasmania.
Some judicial decisions have been more regressive in effect, especially in the realm of marriage equality. While many universal human rights instruments recognize marriage rights for adult men and women, no explicit convention exists for same-sex couples. The Human Rights Committee upholds the States’ rights to refuse same-sex couples the right to marry. Even the Yogyakarta Principles (which is a non-binding set of human rights principles regarding sexual orientation and gender identity established in 2006 by a collective of human rights groups) are silent about the matter. In Joslin V. New Zealand (2002), the Committee declared that the use of ‘men and women’ in Article 23 has ‘consistently and uniformly been understood as indicating that the treaty obligation of States is…to recognize marriage only as the union between a man and a woman wishing to marry each other.’
Similarly, the European Court of Human Rights also declared through Schalk and Kopf. V. Austria (2010) that ‘States are still free…to restrict access to marriage to different sex couples. It concluded that the limited number of states providing for such access demonstrated a lack of established consensus, and States must also be given the flexibility to introduce legislative changes at preferred time frames.
Such judicial precedents are precisely the areas in which legal implications of discarding the definition of gender would be greatest. Many national laws hinge upon previously established definitions of gender; their alterations would compel governments to reinterpret legal boundaries. Granted, definitions are pillars of legal decision-making, open to change only under widespread consensus. America, as well as the global community, is yet to reach such a stage. Transgender and intersex people remain disenfranchised from obtaining official recognition of their gender identity andsame-sex couples are much more prone to be legally discriminated against by private actors, including healthcare providers and insurance companies. The International Law Commission’s bold request to discard the legal definition of gender illustrates the very determination of our society’s slow and steady progress.
Claire Oh is a freshman at Duke from Seoul, Korea. She is studying political science and philosophy.