Professor Douglas Sanders
December 14, 2009
sanders_gwb @ yahoo.ca
Asia and Pacific Transgender Network Development Conference,
Bangkok, Thailand, December 13-16, 2009.
BEYOND THE SEXUAL BINARY
Human rights principles, as we now know them, began in the years after World War II with provisions in the UN Charter (1945) and the Universal Declaration of Human Rights (1948). There was simple binary thinking in those days. There are men and women. They enter into marriage. They have kids. Families are to be protected.
The Universal Declaration, Article 16, provides:
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. …
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
This wording is copied in the International Covenant on Civil and Political Rights of 1966 (Article 23).
In the case of Joslin v New Zealand in 2002, the UN Human Rights Committee rejected a claim for same-sex marriage on the basis of the reference to “men and women” in Article 23 of the Covenant on Civil and Political Rights.
The good new is that Article 23 in the Covenant is the only provision that refers to “men and women.” Other provisions, such as the equality / non-discrimination sections, apply to “everyone” or “all persons.” Here is Article 27 of the Covenant on Civil and Political Rights:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
We are included. We are, of course, the ghost in the closet, unnamed and unacknowledged. But clearly we are “persons” and surely our characteristics fit within the closing words of “other status.” So, after we were denied marriage rights in the Joslin decision, we were given equal pension rights in Young v Australia, and X v Colombia, two later decisions of the UN Human Rights Committee.
For us, who come somewhere within the LGBTIQ rainbow, the process since 1945 has been to gain visibility and understanding within international and national human rights systems. The lead has often been taken by the international system, which has set standards for countries to accept and implement. On racism and sexism, the international human rights system has been ahead of practice in almost all countries. It’s not quite the same story when we look to sexual orientation and gender identity, but we can now say that for TG, there has been progress.
1. The Right to Health
Article 12 of the International Covenant on Economic, Social and Cultural Rights recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” The World Health Organization and most national health associations recognize “transsexualism” or “gender identity disorder” or “gender dysphoria” as a medical condition and appropriate treatment can include hormonal therapy and sex reassignment surgery (SRS).
The European Court of Human Rights in the case of L v Lithuania in 2007 recognized the right of an individual who had been diagnosed as a transsexual to have the government medical system provide sex reassignment surgery. That year a panel of judges in Brazil ordered the public health system to provide SRS without charge, implementing a constitutional provision guaranteeing medical care as a basic right. The state of Tamil Nadu in India announced in 2008 that such surgery would be performed without charge in government hospitals. Even Cuba allows SRS in appropriate cases.
Some countries, such as Malaysia, do not allow SRS. Some countries do not include SRS in government funded medical programs. Thailand, which is famous for its medical competence on SRS, does not cover the procedure in its government medical plan.
Many countries have strict pre-conditions before surgery can occur – some requiring no previous marriage and no children. Those restrictions have not yet been challenged before the European Court of Human Rights or the UN Human Rights Committee.
2. The Right to Privacy
Most transsexuals want to have personal documents that do not “out” them as transsexuals. The European Court of Human Rights in Goodwin v UK in 2002 recognized the right of a post-operative transsexual to have her personal documents – driver’s license, passport, birth certificate – changed to conform to her post-operative sex. In Asia, document change is possible (often with conditions) in Indonesia, Japan, Singapore, South Korea and parts of China. Document change is not possible in Malaysia, the Philippines or Thailand. In some countries that allow document change, the individual must have had genital surgery and be sterile. Legislation in the UK, Spain and Argentina does not require genital surgery for document change. There have been ‘pregnant men’ in Oregon and Barcelona in recent years.
3 Recognition of relationships
The Goodwin decision in 2002 held that Goodwin had the right to marry in the post-operative sex. As a MTF, she was now entitled to marry a man. The famous South Korean actress and singer Harisu, an MTF, has legally married her boyfriend.
4. Non-Discrimination (Gender identity)
In 1996 in the case of P v S and Cornwall County Council, the European Court of Justice ruled that discrimination on the basis of sex reassignment was discrimination on the basis of sex, and, for that reason, was contrary to European Union law. Since then, all members of the EU are required to prohibit discrimination on the basis of “gender identity” or sex reassignment. Many non-discrimination laws in North America now prohibit such discrimination. The most recent judicial decision in the US, Schroer v Billington in 2008, held such discrimination was a form of discrimination on the basis of “sex” and also “sexual stereotyping”, both of which brought it under federal human rights laws. But other District Courts in the US may or may not follow that decision.
5. Non-Discrimination (Gender Expression)
What about discrimination against men who display some femininity or women who are somewhat masculine? We are now talking about ‘gender expression’, not transsexuality or transvestism. The popular terms vary:– kothis, ladyboys, metrosexuals, flower men, toms, butches.
The United States Supreme Court in the 1989 decision in Price Waterhouse v Hopkins held that a senior and highly successful employee had been denied a partnership on the basis that she was too masculine. She was told to wear make-up and jewelry and ‘take a course at charm school.’ The court called this sexual stereotyping and said it was a form of discrimination on the basis of sex. But more recently a masculine woman bar tender at a Las Vegas casino was fired for refusing to wear make-up. The courts upheld the firing, noting this was the “entertainment industry”, suggesting that conventional glamour was a job requirement.
A US case involves a lesbian student who wanted to wear a tuxedo (not a dress) to the graduation dance. A current Thai issue is whether a kathoey or ladyboy can wear a female school uniform to classrooms, exams and graduation ceremonies.
6. Economic and Social Rights
In the West, and in the Confucian influenced parts of Asia, transsexuals and transgendered individuals are seen, and largely see themselves, as individuals. In South Asia and most of Southeast Asia, there are named categories of transgendered individuals, who share what we can call a “third sex” identity. A “kathoey” in Thailand is often called “a second kind of woman.” There are Mak Nyah in Malaysia, Bakla in the Philippines and Waria in Indonesia.
Hijra, Aravani, Meti in South Asia are understood as separate sex/gender collectivities – neither men nor women. These groupings often function as a cultural minority, with a distinct history, collective living and even special religious roles (dancing and giving blessings at weddings and the birth of children). Or they may live highly individualized lives, fairly well integrated into society, as tends to be the case in Thailand.
Where transgendered individuals are distinctive collective minorities, they are often very poor and socially marginalized. In South Asia there are complaints that Hijra and similar groups are denied access to normal social programs, regular education and most kinds of employment. These constitute denials of economic and social rights, as provided in the International Covenant on Economic, Social and Cultural Rights.
The government of the State of Tamil Nadu in India has taken a lead in responding to these denials, with new ration cards identifying the Aravani as ‘third gender’ and establishing a special state welfare board for them. Seats are reserved for them in colleges, as is done for other marginalized groupings. Some social welfare programs specifically for transgendered individuals have also been provided, from time to time, in Indonesia and Malaysia. Recent court cases in both Nepal and Pakistan have ordered governments to extend social programs to third sex groupings.
7. Rights to Participate in Society
Governments are encouraged to set up “affirmative action” programs to ensure that inequalities faced by women, racial and cultural minorities, and other vulnerable or
marginalized groups are helped to advance. It is seen as a democratic achievement when there are women and minority representatives in high office.
At the moment there is only one LGBTI individual in a nationally elected position in Asia – Sunil Pant, a gay man, in Nepal (and he was elected on a party list, not as an individual candidate). But TG individuals have been elected to local government positions in India and to a state legislature in India and a prefectural legislature in Japan.
In “tolerant” Thailand, there are no ‘out’ LGBTI individuals in the parliament or the cabinet (though ‘everybody knows’ there have been gay prime ministers). In Malaysia, of course, homosexual allegations and charges have been used, politically, against Anwar Ibrahim. Former PM Mahathir said it was completely unacceptable to have a homosexual (his allegation against Anwar) as a political leader.
TG individuals have achieved success in entertainment. The Thai ladyboy band, Venus Flytrap, is a local example. The most famous dancer in China is MTF, as is one of the most popular entertainers in South Korea.
GETTING TRANSGENDER ON THE AGENDA AT THE UN
Simplistic views of sex, gender and sexuality have been gradually challenged in international human rights law.
In 1981 the European Court of Human Rights in Dudgeon v UK ruled against an anti-homosexual sodomy law. This was the first application of human rights principles to gay men at a regional or international level. It was our first international human rights victory. Progress after that was slow. It was only in 1994 in Toonen v Australia that the UN Human Rights Committee made the same breakthrough ruling – only fifteen years ago.
For transgender, the date which would mark the beginning of recognition in international human rights law would be 2002, the date of the decision of the European Court of Human Rights in Goodwin v UK – a mere seven years ago. The first decision on transsexual health rights is L v Lithuania, again in the European Court of Human Rights, and only two years ago. We do not yet have parallel decisions by any UN treaty body.
We have had on-going debates at the UN over the meaning of the word “gender.” These debates go back to the 1994 Cairo International Conference on Population and Development, and the 1995 Fourth World Conference on Women in Beijing. At these meetings the idea that “gender” (unlike physical sex) was a “social construct” was tossed about. The Catholic Church, in league with Islamic states, saw storm clouds ahead. They feared that a “cultural” view of “gender” could legitimize homosexuality and lead to same-sex marriage. This debate has never been resolved at the UN (which is a good thing, for if it came to a clear vote, gender could loose out to sex).
Paul Hunt, the UN Special Rapporteur on the Right to Health, issued a report in 2004 on sexuality, including issues relating to sexual orientation and gender identity. He wrote [paragraph 39] that governments “should ensure that sexual and other health services are available for men who have sex with men, lesbians, and transsexual and bisexual people.” TG people were starting to get named in UN reports – a new development!
In 2006, Madam Louise Arbour, then the UN High Commissioner for Human Rights, gave a speech at an international LGBTI human rights conference. She noted that some countries “prohibit gender reassignment surgery for transsexuals”, saying that there was no doubt that such a law violated international human rights standards.”
In 2008, Madam Navi Pillay, the current UN High Commissioner for Human Rights, stated:
No human being should be denied their human rights, simply because of their perceived sexual orientation or gender identity. … Those who are lesbian, gay or bisexual, those who are transgender, transsexual or intersex, are full and equal members of the human family, and are entitled to be treated as such.
More recently, Special Rapporteur Martin Scheinin issued a report in August, 2009, on Human Rights and Counter-Terrorism, addressing primarily the gendered impact of counter-terrorism measures. His discussion included attention to homosexuals and transgender people.
 Gender is not synonymous with women but rather encompasses the social constructions that underlie how women’s and men’s roles, functions, and responsibilities, including in relation to sexual orientation and gender identity, are defined and understood. …  International human rights law … requires States to ensure non-discrimination and equality (de jure and de facto) on the basis of gender, sex, sexual orientation and gender identity…  In Nepal, the counter-insurgency campaign that was defined with reference to terrorism was characterized by attacks on meti (effeminate males or transgender persons) by both sides, with reports that the Maoists were abducting meti and the police were taking advantage of the counter-terrorism environment to attack meti as part of a “cleansing” of Nepali society. …  …to stop dehumanizing victims of terrorism, Governments should remedy the gender inequality that makes women and lesbian, gay, bisexual, transgender and intersex individuals the targets of terrorism …  …in Egypt, Government targeting of lesbian, gay, bisexual, transgender and intersex individuals has been a way of shoring up religious legitimacy and signifying to opposition movements that the State is “the guardian of public virtue”.
There was opposition in the UN Human Rights Council earlier this year when the report was received, mainly over his assertion that “gender” was socially constructed. The report clearly shows that the “expert” parts of the UN system have embraced equal human rights for LGBTI. The “political” parts of the UN system are slower to change.