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Gender is not an illness: How pathologization violates human rights law

This paper was conceived and produced by GATE as a contribution to the ongoing process of depathologizing trans and gender diverse people through the reform of classification systems, legal frameworks and social attitudes.

Pathologization appears to be a new concept in the human rights field; however, it describes the lived experiences of many trans and gender diverse people around the world over the last several decades. ​It conveys and executes a naturalized distinction between acceptable and unacceptable ways of being in the world –namely, “healthy” and “pathological”. Historically, those of us who identify ourselves in a gender different to the sex assigned to us at birth have faced stigma, discrimination and violence because being ourselves was considered to be, in itself, a pathology. Sadly, this history remains our shared present.

Pathologization has also been consistently used to deny, restrict and condition trans and gender diverse people’s access to very basic rights, including legal gender recognition, gender-affirming healthcare, and its coverage​. ​Institutionalization, “conversion” treatments, mandatory psychotherapy, coercive surgeries, invasive mental and physical examinations, sterilization, and forced divorce are intrinsic parts of the requirements imposed upon us every time and place our gender is considered to be an illness.​

​As a critical framework, depathologization was created and established by those communities and movements primarily affected by its negative effects. In spite of our visibly marginalized situation in mainstream human rights spaces and the spread of epistemic injustice associated with being defined as “pathological” subjects, trans and gender diverse activists have been able to create the language to address the norms defining, oppressing and excluding us. After years of intense trans and gender diverse organizing, that language has been adopted by official institutions.

​The main goal of this paper is to highlight how pathologization sits within the international human rights framework as a specific root for human rights violations, and as set of practices and consequences that extend those violations from childhood to adulthood. Moreover, the introduction of pathologization as a key human rights concern is a necessary step to dismantle its pervasive influence and to finally make depathologization a reality for all.

The paper was authored by Sheherezade Kara, with the contribution of an international group of experts: Amets Suess-Shwend, Cianán B. Russell, Viviane Vergueiro, Eleonora Lamm, Eszter Kismodi and Mauro Cabral Grinspan.

 

To celebrate the release of the YPplus10 and to highlight its relevance for our different communities, from today GATE is publishing a series of briefings related to different aspects of the document. Their first briefing focuses on intersex issues.

Background

The Yogyakarta Principles[1] were first created in 2006, primarily at an expert meeting in Yogyakarta, Indonesia. The intention was (and remains) to apply international human rights law to sexual orientation and gender identity. The new 2017 Supplement extends the Principles to formally also include sex characteristics and gender expression.

Representation

There was only one intersex activist at the expert meeting in Yogyakarta: Mauro Cabral Grinspan. For the 2017 Supplement, Mauro (now of GATE) and Morgan Carpenter (OIIAU and GATE) were part of the drafting committee. Many other human rights and legal experts joined a new expert meeting in Geneva, in September 2017. Those participants came from all around the world, and from intersex, trans, LGBT, and other backgrounds; they included Kimberly Zieselman (interACT).

Protection from medical abuses

The original Principles mention intersex in the preamble, and make reference to a range of rights that benefit all people, including intersex people, on grounds of sexual orientation and gender identity. Principle 18B seeks to end human rights violations in medical settings. However, the language of the original Principles did not meet the aspirations of the intersex participant, and Principle 18B is constrained by the simplistic way it referenced the child’s best interests. In recent years, the UN has recognised that the concept of best interests can (and has been) manipulated,[2] and used to justify cruel or degrading treatment and violations of the right to bodily integrity.[3]

Impact and goals

While widely cited in relation to the rights of people of diverse sexual orientation and (to a lesser extent) gender identity, the Principles have had even less impact in promoting the rights of intersex people.

Given the importance of the Principles in establishing the rights of people on grounds of sexual orientation and gender identity, we hope that the Supplement will promote the rights of all people on grounds of sex characteristics, and gender expression. The 2017 review aims to be feminist, intersectional, and fully reflect the needs of (overlapping) intersex and trans populations.

The Principles are a tool that people and organisations can use in advocacy. There is nothing obligatory about them, but we hope that they will encourage better recognition of intersex human rights issues by people who use a SOGI framework, and encourage adoption of SO/GIE/SC lenses.

The ground of ‘sex characteristics’

The Supplement defines sex characteristics in this way:

UNDERSTANDING ‘sex characteristics’ as each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty;

This definition provides a powerful tool for the recognition of the rights of people in the context of changes to sex characteristics, and discrimination on the basis of sex characteristics. The term ‘sex characteristics’ is already used to define intersex and tackle violence and discrimination against intersex bodies. The term already appears in popular and widespread definitions of intersex, such as those produced by the UN:

Intersex people are born with physical or biological sex characteristics (such as sexual anatomy, reproductive organs, hormonal patterns and/or chromosomal patterns) that do not fit the typical definitions for male or female bodies. For some intersex people these traits are apparent at birth, while for others they emerge later in life, often at puberty.[4]

A definition of sex characteristics was also written into law in Malta in 2015, providing a first legislative protection for children from forced modifications to sex characteristics.

The definition of sex characteristics in the YP is universal – it applies to everyone, as everyone has some combination of sex characteristics, including both innate and acquired sex characteristics. Intersex characteristics are problematised prenatally, at birth and in childhood, adolescence and even adult life. Genital mutilation and trauma change sex characteristics. Not all changes are human rights violations: gender affirmation surgery also changes sex characteristics.

Legislative protection on grounds of sex characteristics can protect from human rights violations and it can also protect from discrimination.

The term does not require that people use the word ‘intersex’ to describe themselves. It is not associated with any specific legal sex classifications or gender identities. By encouraging specificity about what is meant by sex, ‘sex characteristics’ can promote better language about what it means to be born with an intersex variation, and our diversity.

The new principles and state obligations

Preamble

The preamble defines sex characteristics. It also recognises the distinct needs, characteristics, and human rights situations of different populations on grounds of sexual orientation, gender identity, gender expression and sex characteristics. It recognises that the needs, characteristics and situations of intersex people thus differ from those of gay men. The preamble also recognises other intersectionalities, including due to racialisation, and Indigeneity.

Principle 31: The right to legal recognition

This principle calls for an end to sex/gender registration and inclusion in legal identification documents. This is based upon International Covenant on Civil and Political Rights article 24 and Convention on the Rights of the Child article 7.[5] These articles call for the registration of children with a name and a right to acquire a nationality. This might seem radical, but the International Covenant on Civil and Political Rights was signed back in 1966 and neither the Covenant nor the Convention require registration of any ‘biological’ characteristics.

The Principles outlines interim measures while legal systems require sex/gender on identification documents, including simple administrative mechanisms to change classifications, and recognition of multiple gender markers.

Principle 32: The right to bodily and mental integrity

This principle recognises that forced and coercive medical practices violate human rights principles on freedom from torture, cruel, inhuman and degrading treatment (a principle which includes freedom from experimental treatment). It also recognises that such practices violate to the right to bodily integrity, a right that derives from the right to personal security. The principle requires free prior and informed consent except in situations of urgent necessity for medical treatment. It calls on governments to combat the stigma and stereotypes that underpin treatment.

The Principles also seeks to manage problems with ‘best interests’ test, and calls for independent counselling.

Principle 37: The right to truth

This principles builds on rights established to combat impunity,[6] including an individual’s right to the truth about their medical history and access to redress, reparations and restorative treatments; to systemic rights to preserve memory and guarantee the right to know.[7] The Principle calls for this to not be subject to statutes of limitations.

Other principles

The Principles already call for access to healthcare, including gender affirming healthcare. They also call for rights to protection from poverty (34), the right to sanitation (35) including access to toilet facilities, and the enjoyment of information and communication technologies.

State obligations

A number of State Obligations have a direct and immediate relationship to the human rights situation of intersex people:

• An obligation to provide reasonable accommodations (2G) recognises that some intersex and other people may need support in education, employment and other contexts, whether due to acquired or innate health issues.
• An obligation on prenatal interventions (2L-M) calls for an end to prenatal treatments and genetic selection that discriminate against intersex people on grounds of sex characteristics. This language reflects similar statements on the role of sex selection in discriminating against women.[8] The State obligation doesn’t call for prohibition of such technologies, because it is limited to existing norms in international human rights law. Recognising that human genetic modification is becoming technologically feasible, this is anticipated.[9]
• The same concerns about current norms in international human right law mean that the Principles do not call for a right to marriage equality; the right to abortion and post-abortion care (33B and 17P) also match the best available international jurisprudence.
• Discrimination in sport (2I-K; Additional R).
• Recognise that forced modifications of sex characteristics may amount to torture (10D-E).
• Access to educational resources (16J, 17S).
• Disaggregation of data (19I).

[1] Read the first Yogyakarta Principles and the YP+10 supplement at: http://yogyakartaprinciples.org

[2] Committee on the Rights of the Child. General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1). 2013. Report No.: CRC/C/GC/14, para. 34. Available from: http://undocs.org/CRC/C/GC/14

[3] Committee on the Rights of the Child. General Comment 13: Article 19: The right of the child to freedom from all forms of violence. 2011. Report No.: CRC/C/GC/13, para. 54. Available from: http://undocs.org/CRC/C/GC/13

[4] Office of the High Commissioner for Human Rights, African Commission on Human and Peoples’ Rights, Council of Europe, Office of the Commissioner for Human Rights, Inter-American Commission on Human Rights, Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, et al. Intersex Awareness Day – Wednesday 26 October. End violence and harmful medical practices on intersex children and adults, UN and regional experts urge. 2016. Available from: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20739&LangID=E

[5] United Nations. International Covenant on Civil and Political Rights. 1966. Available from: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx; United Nations. Convention on the Rights of the Child. 1989. Available from: http://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf

[6] Orentlicher D, Economic and Social Council. Report of the independent expert to update the Set of principles to combat impunity, Diane Orentlicher Addendum Updated Set of principles for the protection and promotion of human rights through action to combat impunity. UN Commission on Human Rights; 2005 Feb. Report No.: E/CN.4/2005/102/Add.1. Available from: http://undocs.org/E/CN.4/2005/102/Add.1

[7] World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance. Durban Declaration and Programme of Action. 2001, para 98. Available from: http://www.un.org/WCAR/durban.pdf

[8] Toebes B. Sex selection under international human rights law. Medical Law International. 2008;9(3):197–225. Available from: http://www.rug.nl/research/portal/publications/sex-selection-under-international-human-rights-law(306b9838-c767-4c3b-9daf-c33be0168f24).html

[9] Ledford H. CRISPR fixes disease gene in viable human embryos. Nature News. 2017 Aug;548(7665):13. Available from: http://www.nature.com/news/crispr-fixes-disease-gene-in-viable-human-embryos-1.22382

The struggle for the rights of disabled persons have long been an arduous journey, fraught with pseudo-sciences and external factors such as conflict and poverty.

People with disabilities are often subjected to discrimination and violence, and to a large extent are deprived of their right to live independently. Within this struggle for human rights for disabled persons lie a subject that is rarely touched upon, that of their sexual and reproductive health and rights (SRHR), and it is at this juncture that this ARROW for Change bulletin positions itself. From looking at how disability is viewed through the lens of art pieces created by disabled artists, disabled women’s place in a society that places high regards in a woman’s reproductive capabilities in the context of marriage, to an interview that sheds light on the intersectionalities of mental disabilities and SRHR, the current bulletin seeks to fill in gaps in knowledge in the disability terrain.

A guide to rights-based messaging

This guide from IPPF is designed to help organizations review communications materials that include messages about abortion. It includes some basic information about abortion and related issues, and checklists to review and improve abortion messaging.

The guide includes chapters on:

• Golden rules of abortion messaging
• Facts and statistics
• Legal situation
• Abortion provision
• Responding to social norms and stigma
• Sharing personal stories about abortion
• Language guide – suggested messages
• Language guide – how to avoid stigmatizing language
• Guide to rights-based imagery

This factsheet from Planned Parenthood demonstrates the many health benefits — physical, emotional, and social — that have resulted in the US since have 1973, when the U.S. Supreme Court legalized abortion in its decision, Roe v. Wade

In sum, no amount of controversy over abortion can negate the evidence that American women, men, children, and families have reaped great benefits to their physical, mental, and social health from the U.S. Supreme Court’s historic decision in Roe v. Wade. Any erosion of a woman’s right and access to medically safe, legal abortion jeopardizes the health of women, their families, and the nation as a whole.

Key points:

• Roe v. Wade did not “invent” abortion
• Deaths from abortion declined dramatically during the past three decades
• Medically safe, legal abortion has had a profound impact on American women and their families.
• The health and well-being of women and children suffer the most in states that have the most stringent laws that restrict access to safe and legal abortion.

This six-page position paper from the Sexual Rights Initiative lays out the fundamental right to abortion from an international legal perspective.

The paper also outlines the unintended effects of criminalization: the denial of women’s fundamental rights to life, to health, to bodily autonomy, to freedom from torture, and to freedom from discrimination.

The final section discusses the two levels of discrimination that occur when abortion is made illegal. The first, embedded in the laws themselves, is sex discrimination: the laws criminalize health services used exclusively by women. The second level of discrimination is de facto: the criminalization of abortion disproportionately harms women in poverty, adolescent girls, women living in rural areas, and women who are members of other disadvantaged groups (migrants, ethnic minorities, etc.)

 

The so-called Alliance Defending Freedom (ADF) is one of the USA’s most dangerous organisations working to prevent equality for LGBT people.

An enthusiastic leader in defending the unconscionable “right” to discriminate against LGBT people, they are also a world-wide exporter of their own brand of hate.  ADF bills itself as an “alliance-building legal organization that advocates for the right of people to freely live out their faith”—unless of course that faith contradicts with their own anti-LGBT version.

This paper presents 10 of the ways the ADF is supposedly working to protect their “freedom” to discriminate:

1. Working to promote its non-inclusive agenda, ADF is the nation’s largest anti-LGBT legal advocacy group in the nation, raising over $178 million over the past 5 years, with an annual budget of over $45 million and rapidly expanding.
2. ADF practically invented marriage discrimination. They literally wrote the original language for discriminatory same-sex marriage bans in Idaho (2005), Colorado (2006), and South Carolina (2006).
3. Sticking their head in the sand, ADF stubbornly refuses to stop defending same-sex marriage bans, even when leaders in those states abandon them and stand on the right side of history.
4. ADF wants the “freedom” to discriminate. They’ve sued cities and states for passing LGBT-inclusive anti-discrimination laws and ordinances—because it isn’t just about marriage, it’s about protecting the “freedom” to discriminate against LGBT people.
5. ADF stands up for bigotry. They enthusiastically defended the “rights” of businesses to discriminate against LGBT people. They even developed Arizona’s incredibly controversial bill, SB 1062, which would have legalized bigotry against LGBT people in restaurants, shops, and businesses all across the state.
6. ADF protects bullying. When school districts try to prevent harmful bullying of LGBT teens, ADF has stood up for the bullies by attacking the school districts for teaching tolerance. They’ll also fight for a student’s “right” to wear an anti-LGBT slogan on a t-shirt.
7. Forget about dignity and respect.  ADF thinks they know best. They’ve fought to overrule principals and stop schools from treating transgender students with the dignity and respect they deserve, arguing: “Are parents supposed to be OK with allowing such boys to use the girls’ restroom and locker room facilities?”
8. ADF is committed to keeping families together, unless of course someone is LGBT. ADF fights to split families apart by defending disgraceful decisions of biological parents to deny visitation rights to LGBT people who’ve raised children as their own.
9. ADF loves science, especially the pseudo type. ADF defends the tremendously harmful and debunked pseudoscience known as reparative or “conversion” therapy. Telling LGBT kids they can change who they are if they just try hard enough, they’ve fought against efforts—including in New Jersey—to ban this destructed and discredited practice.
10. ADF is an exporter of hate. They have an entire international program dedicated to promoting their hateful anti-LGBT laws and rhetoric abroad. They’ve advocated against the rights of LGBT people in international human rights cases, and have partnerships with attorneys in 31 countries around the world.

This profile was produced by the Human Rights Campaign.

This ARROW paper examines the issues and challenges facing the increasingly larger youth population of the world, especially those pertaining their sexual and reproductive health and rights (SRHR) and comprehensive sexuality education (CSE).

As young people face legacy problems such as vulnerability to disease, female genital mutilation and early and child marriage, normative assumptions about sexuality hinders efforts to equip them with knowledge, skills, attitudes, and values needed to determine and enjoy their sexuality. The opposition to CSE has been shown to be aligned with deep religious and political predispositions which are inextricable from rapidly changing political, economic, and social contexts. By looking at qualitative evidence from Bangladesh and India, this paper looks at how societal panic and anxiety about sexuality and sexual behaviour of young people influences their access to both SRHR and CSE, and provides recommendations for future actions.

Table of Contents

Arrow for change is a publication on women’s, gender and rights perspectives in health policies and programmes. This volume (23,2 2017) deals with Sexual and Reproductive Health and Rights (SRHR) in the era of the Sustainable Development Goals (SDGs).

Table of Contents

1. editorial
   1. Universal Access to SRH and Universality of SRR: Achieving the Impossible?
2. spotlight
   1. Chaotic, Isolationist, and Anti-Woman: The Trump Administration and SRHR
   2. Trade Agreements, SDGs, and Universal Access to SRHR
   3. Women’s Economic Empowerment and SRHR: The Missing Link
   4. Why Prioritise SRHR in Climate Change Programming and Policymaking
   5. Shifting the Ground on Sexual Rights at the UN
   6. Why Are Women Still Dying from Unsafe Abortions?
3. in our own words
   1. SDGs: Sex Workers Fall through the Cracks
   2. When Some Are Left Behind, All Are Left Behind: A Youth Trans Feminist Activist Perspective from the Pacific
   3. SRHR and the 2030 Agenda: What’s at Stake for Young People Living with and Affected by HIV?
4. voices from the global south
   1. Staying Inspired for Women Living with HIV and Women Who Use Drugs: In Conversation with Baby Rivona
5. monitoring countries and regional activities
   1. The Yogyakarta Principles: Looking Back, Looking Forward
   2. Women’s SRHR and Climate Change: The Case of Mindoro, the Philippines
   3. Voicing Concerns to Ensure Young People’s SRHR: Youth-led Submissions on the Universal Review of Pakistan
   4. Pushing Boundaries: Advocating for the Right to Safe Abortion in the Philippines
6. resources from the arrow srhr knowledge sharing centre
7. selected arrow resources
8. definitions
9. factfile
   1. SRHR off the Table?

UN Resolution 20/11 on the ‘Promotion of the enjoyment of the cultural rights of everyone and respect for cultural diversity’ was adopted by the Human Rights Council on 5 July 2012.

Reaffirming the previous resolution on cultural rights 17/15, it “requests the Office of the United Nations High Commissioner for Human Rights to convene, in 2013, a seminar of two working days on the right to enjoy the benefits of scientific progress and its applications in order to further clarify the content and scope of this right and its relationship with other human rights and fundamental freedoms”.