The 'Half-Invention' of Gender Identity in International Human Rights Law: From Cedaw to the Yogyakarta Principles
Dreyfus, Tom, The Australian Feminist Law Journal
This article explores the invention of 'gender identity' in international human rights law. It examines the discursive production of the marginalized sexual subjects of human rights law in order to reveal the restrictive binaries and categories on which the international legal framework relies to articulate rights. With a particular focus on CEDAW and the Yogyakarta Principles, the article applies an anti-identitarian critique to the categories of 'women' and 'gender identity.' It is argued that the 'half-invention' of the category of 'gender identity' may unwittingly subject people of diverse gender identities to the discursive production of fixed identities instead of their own conceptions of blurred identification. Finally, this article weighs the importance of a pragmatic approach to the goal of establishing sex and gender human rights in the legally binding instruments of international human rights law.
What is an invention? What does it do? It finds something for the first time.1
Because there is neither an "essence" that gender expresses or externalizes nor an objective ideal to which gender aspires; because gender is not a fact, the various acts of gender creates the idea of gender, and without those acts, there would be no gender at alL Gender is, thus, a construction that regularly conceals its genesis.2
This article is about gender and sexual identities. It belongs to Jacques Derrida's dream of a world in which the code of sexual marks is no longer discriminating.3 In particular, this article is about human rights and the international legal instruments that seek to express them. It considers some of the consequences of the invention of 'gender identity' as a category to which human rights now apply. In doing so, it engages with some of the traditionally marginalised subjects of international human rights law, 'women' and people who experience their sex(es) and gender(s) in diverse ways.
Drawing on post-structuralist feminist, 'difference' feminist and queer theories, the article applies an anti-identitarian critique to the categories of 'women' and 'gender identity' in international human rights law. Specifically, it questions the appropriateness of the 'womenspecificity' of international sex discrimination law.4 As we shall see below, the Convention for the Elimination of All Forms of Discrimination Against Women5 ('CED AW or 'the Convention') exemplifies this focus on the unitary category of 'women.' The article also offers a comparative critique of the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity6 CYogyakarta Principles' or 'the Principles'). I argue that the Principles' identitarian impulses have the potential to undermine a universal conception of fluid and changeable gender identity. The article demonstrates that what I have called the 'halfinvention' of the category of 'gender identity' in international human rights law may unwittingly subject people of diverse gender identities to the discursive production of fixed identities instead of their own conceptions of blurred identification.
Part 2.0 of the article examines the identitarian impulses of international human rights law and explores the relationship between the 'half-invention' of 'gender identity' and the discursive production of law's marginalised (sexual) subjects. Part 3.0 exposes the ways in which the identity categories that are embedded in CEDAW and the Principles are potentially harmful to those whom these legal instruments seek to protect. Part 4.0 argues that both CEDAW and the Yogyakarta Principles represent positive steps towards the elimination of discrimination on the basis of sex and gender, but that their shortcomings are worthy of further critique, and Part 5.0 concludes.
2.0 THE MARGINALIZED (SEXUAL) SUBJECTS OF HUMAN RIGHTS
This article begins from the premise that '[hjuman rights do not belong to humans and do not follow the dictates of humanity; they construct humans. …