Rainbow Charter | Gender Identity under International Human Rights Law

Rainbow Charter is a column on international law and queer rights, with a keen focus on macro international law as well as deeper micro LGBTQ laws. This column also maps the current LGBTQ laws based on geographic regions and also aims to summarise progressive LGBTQ judgements from around the world and how it shapes the international context.

Globally, issues surrounding Sexual Orientation and Gender Identity (SOGI) are gradually being given more importance when it comes to discussions of human rights. International Human rights law should ideally be used by nations as a guideline to assert these laws in cases of discrimination against minority groups. When it comes to Gender Identity, International Human rights law has been adapted and contextualised to provide for the LGBTQ+ community through different interpretations because there is no specific acknowledgment in treaties or conventions that are LGBTQ+ inclusive.

Therefore articles within frameworks such as the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and International Convention on the Elimination of all forms of Discrimination Against Women have been employed to encompass LGBTQ+ rights into their frameworks in cases of discrimination. In addition, the Yogyakarta principles set out a guideline on how nations should act in terms of gender identity. However, Human rights are different from legal rights, which raises the question: to what extent does international human rights law actually play out in practise when in comes to cases of discrimination against gender identity? Looking at different spheres of society helps inform us on the true extent to which these international laws and principles have actually been applied in practise.

Official recognition through mediums such as a census can play an important role in acknowledging the presence and existence of minority groups, particularly in the case of sex and gender minorities (SGMs). Increased data on communities can therefore show ways in which access to resources and services needs to increase. Although no country has developed a proper and efficient way to count its Sexual Gender Minority (SGM) population, there have been recent developments in incorporating SGM communities into government data. In the UK and US, including gender identity as an option in the 2021 national census is still part of an on-going debate. However, in India, the 2011 census was the first major census accounting for the transgender population of the nation. Although under the vague category of “other”, and not within the categories of male and female, this step was a big move in applying the Yogyakarta principles to practice. The data collected can be extremely beneficial in providing a starting point of how important aspects of society can be redefined, such as healthcare, education, employment and access to food. With the data collected, it was then made possible to analyse the position and realities of SGM’s in India when answers could then be analysed alongside other findings including literacy, age, location, rates. From this data, one would hope that further improvements could then be made when it comes to accessing resources as a SGM in India. In this case, we can therefore see the importance of applying these principles into practise, but even after this, the work to implement practises at a grassroots level to bring about efficient change in ensuring SGM’s are treated the same as the rest of the population continues, and requires the involvement of many fractions of society right from the government, at a grassroots level, to enable this.

Another way in which we can assess human rights law in practise is through the experience of SGM’s in the prison system. The state plays a large role in the continued violence against LGBTQ+ and SGM’s, evident from the frequent harassment of trans people by the police worldwide. In addition, the state also has the power to determine the gender identity of an individual through the methods it chooses. In American prisons, trans inmates are at higher risk of physical and sexual assault, denied access to basic rights like medical care and held in solitary confinement for longer than their counterparts. To top this, in the US, a country with the highest number of incarcerated people in the world, a shocking 21% of trans women have been incarcerated in their lives, signalling the importance of implementing international human rights laws on gender identity into practise around the world. Sexual and Gender minorities face immense difficulties in the prison system as prison accommodation is defined by biological sex, and not gender identity. In an impressive bid to combat this, the 2012 Prison Elimination Act (PREA) assessed trans and intersex inmates individually on a case-by-case basis according to gender ID, to determine what type of prison they’d be housed in. However, with the Trump administration, housing for inmates has been reverted back to determination via biological sex. This huge step back highlights the importance of actually applying law to practise when accounting for all the areas of life. SGM’s face discrimination, because if there were actual laws in place that guaranteed the safety of minority citizens – unlike practises which can be treated as voluntary – then SGM’s would not have to face yet another ordeal when it comes to accessing justice.

The on-going discussion around applying law to practise plays an important role in informing the ways we use to approach working towards equality for minority communities. It is clear that there is room for interpretation to include LGBTQ+ and SGM’s within these, however lack of asserted work towards actually putting this to practise at ground level demonstrates ways in which progressive steps towards improving the conditions of SGM’s throughout all aspects of society is still inadequate.

Sasha Patel is an Intern at One Future Collective.