In the present report, the Independent Expert examines the process of abandoning the classification of certain forms of gender as a pathology and the full scope of the duty of the State to respect and promote respect of gender recognition as a component of identity. He also highlights some effective measures to ensure respect of gender identity and provides guidance to States on how to address violence and discrimination based on gender identity.
Introduction
1. The United Nations Human Rights Council has expressed its “grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity” (resolution 17/19), and has created the mandate of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity with the aim of addressing this concern. The present report is presented by the Independent Expert, Victor Madrigal-Borloz, to the General Assembly pursuant to Human Rights Council resolution 32/2.
2. In his previous report to the Human Rights Council (A/HRC/38/43), the Independent Expert presented the different forms of violence and discrimination on the basis of sexual orientation and gender identity and, in particular, their intensity and scope. 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 gender expressions, including dress, speech and mannerisms.[1] In addition, the mandate holder takes into account the distinct life experience of individuals based on the interlinkage of their gender identity with other factors, such as race, ethnicity, migrant status, education and economic status. Political, legal, social and economic contexts are also taken into consideration to understand systemic patterns, such as institutional violence and impunity.
3. Concepts of gender identity vary greatly across the world and a wide range of gender identities and gender expressions exist in all regions as a result of long-established cultures and traditions. Some of the terms used include hijra (Bangladesh, India and Pakistan), travesti (Argentina and Brazil), waria (Indonesia), okule and agule (Democratic Republic of the Congo and Uganda) muxe (Mexico), fa’afafine (Samoa), kathoey (Thailand) and two-spirit (indigenous North Americans). Some of these and other identities transcend Western concepts of gender identity, gender expression or sexual orientation and, depending on the language, the terms “sex”, “gender”, “gender identity” and/or “sexual identity” are not always used or distinguished. Cultures and countries from all over the globe, including Australia, Bangladesh, Canada, India, Nepal, New Zealand and Pakistan — together representing a quarter of the world’s population[2] — recognize in law and in cultural traditions genders other than male and female.
4. In that connection, the manner in which laws and policies define identity terms has a significant impact on whether and to what extent universally protected human rights are recognized and protected under the law; moreover, the use of terms such as “sex”, “gender”, “gender identity” and “gender expression” can either give full effect or unduly limit the universal application of human rights.[3]
5. This report uses the term “trans”, well-established in United Nations and regional human rights documents to refer to persons who identify with a different gender to the one assigned at birth. While it is well documented that trans persons are a population deeply affected by discrimination and violence based on gender identity, all persons have some form of gender identity and, depending on how their gender identity is perceived in a particular context, they can potentially be subject to violence and discrimination on that basis. Consequently, the term “gender diverse” is used in the present report to refer to persons whose gender identity, including their gender expression, is at odds with what is perceived as being the gender norm in a particular context at a particular point in time.
6. The notion that there is a gender norm, from which certain gender identities “vary” or “depart” is based on a series of preconceptions that must be challenged if all humankind is to enjoy human rights. Those misconceptions include: that human nature is to be classified with reference to a male/female binary system on the basis of the sex assigned at birth; that persons fall neatly and exclusively into that system on the same basis; and that it is a legitimate societal objective that, as a result, persons adopt the roles, feelings, forms of expression and behaviours that are considered inherently “masculine” or “feminine.” A fundamental part of the system is a nefarious power asymmetry between the male and the female.
7. Gender diversity is illegitimately repressed, generally under the umbrella of culture, religion and tradition (A/HRC/21/42, para. 65), resulting in a variety of normative constructions, the existence and enforcement of which have, over time, reinforced the preconceptions and stereotypes at their origin. Salient among these normative constructions are the interpretation of religious texts, through which certain forms of gender identity have been qualified as sinful; the adoption of laws, through which they have been typified as criminal; and their incorporation into medical classifications as pathologies.
8. In furtherance of the thematic underpinnings identified by the mandate holder in 2017, the present report deals with two thematic areas connected to such constructions: the process of abandoning the classification of certain forms of gender as a pathology (denominated by the Independent Expert and others as “depathologization”) and the full scope of the duty of the State to respect and promote respect of gender recognition as a component of identity. In addition to international human rights treaties and the jurisprudence and doctrine of United Nations and regional human rights bodies and special procedures mandate holders, the inputs to the report have included a variety of contributions received from States, United Nations agencies, programmes and funds, regional human rights mechanisms, national human rights institutions, members of civil society organizations, religious communities and interfaith groups, medical professionals, academic institutions and other stakeholders. Those inputs were delivered during a general consultation on 24 and 25 January 2017, in response to a questionnaire sent in May 2017, during an interactive dialogue following the presentation of the first report of the current mandate holder to the Human Rights Council (A/HRC/38/43), during a focused consultation held by the mandate holder on 19 June 2018 and in writing. The Independent Expert is indebted to all stakeholders for their extraordinary contribution to the report.
9. Violence and discrimination connected to the former or current pathologization of sexual orientation will not be addressed in the present report, but will continue to be an area of focus for the mandate holder and will be addressed in future outputs, including reports.
[1] Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity.
[2] Estimate based on United Nations, Department of Economic and Social Affairs, Population Division, World Population Prospects: 2017 Revision. Available at https://esa.un.org/unpd/wpp/Download/Standard/Population/.
[3] Asia Pacific Transgender Network and United Nations Development Programme (UNDP), “Legal gender recognition: a multi-country legal and policy review in Asia”, 2017.