Report on Gender Theory


Published
June 2021
Author
Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity
Presented
To the HRC at its 47th session, June 2021

Background

Gender theory informed approaches recognize that the meanings attached to sex (and other) differences in relation to social roles, behaviours and expectations are socially created. They also challenge the assumption that gender identity necessarily correlates with biological sex and recognize the validity of a wide range of sexual orientations and gender identities. The recognition of gender as determined by social construct is common to many feminisms, as well as LGBT theory, as is the recognition that gender, sex and sexuality interconnect with other axes of power and identification such as race, age, ethnicity, religion, [dis]ability and health status among others. These approaches provide, for example, recognition of how race is gendered and gender is raced, as well as the many other factors which affect how one is allocated rights, privileges or deficits and limits to rights through social regulation.

Comprehensive and intersectional gender analysis has influenced the interpretation of international human rights law, and many States have adopted gender as a key concept in laws and policies aimed at protecting women and LGBT persons against violence and discrimination. Nevertheless, within multilateral and regional organisations, among other fora, there are currently narratives that, under different lines of characterization (including the accusation of so-called “gender ideology”), seek to eliminate the gender framework from international human rights law instruments and processes, and national legislative and policy documents. These attempts could impact progress achieved over the last four decades on gender equality and the recognition of sexual and gender-based violence and violence and discrimination based on sexual orientation and gender identity.

Summary

The report provides an analysis of the current state of international human rights law in relation to the recognition of gender, and gender identity and expression, in connection with the struggle against violence and discrimination in its different forms. This report and the report to the 76th session of the General Assembly, entitled “Practices of exclusion” complement each other.

In its conclusions, the IE SOGI recognises two fundamental duties of the States (i) to prevent, prosecute and punish violence and discrimination based on sexual orientation and gender identity and expression; and (ii) to recognise every human being’s freedom to determine the confines of their existence, including gender identity and expression. Also, the report concludes that gender-based approaches and legal recognition of gender identity and expression provide the human-rights based framework to fulfil those duties. It also concludes that international human rights law has played a powerful role in the protection of LGBT persons through the recognition of gender, and the specific recognition of gender identity and expression. Further, it concludes that the work to eradicate violence and discrimination based on sexual orientation and gender identity is not in opposition to the human rights of women. In the contrary, they overlap and reinforce each other.

In view of the above, he recommends that States recognise the value of gender-based approaches and uphold rights related to gender and sexuality as universal and inalienable; indivisible; interdependent and interrelated to all other rights. Within this context, the Independent Expert recommends that States ensure the recognition of the right to bodily and mental integrity, autonomy and self-determination. He further recommends that States adopt an understanding of gender and gender identity and expression in conformity with the corpus iuris of international human rights law, among others.

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Methodology

This research process included a literature review, and a call for inputs, in response to which 529 submissions were received, including a total of 42 submissions from State entities stemming from all regions, and 484 contributions from non-State stakeholders, including 202 from organizations and 282 from individuals. The Independent Expert is humbled by this highly participative process: in total, he received specific information concerning 88 UN Member States, covering all geographic regions and a significant proportion of the populations, cultures, legal traditions and religions of the world. All receivable and non-confidential submissions will be published on this page at the time of the publication of the report.

Number (and percentage) by region

Number (and percentage) by stakeholder type

Number by stakeholder type and by region