Abstract
Gender came gradually but with increasing visibility into the law, with a considerable spread in the international legal sphere. Initially there is only the explicit reference to ‘sex’, in the general meaning of sexual identity, as an unjustified reason for discrimination, along with natural, ethnic, socio-economic conditions and political and religious opinions. In this context there emerges a general reference to ‘other status’ without further specification. The chapter reconstructs the so called ‘Gender Agenda’, giving a general view of the legal documents referring to ‘gender’, pointing out the ambiguity of its use and showing the practical implication of the theoretical discussions, with specific reference to intersexuality, transsexualism, transgender, homosexuality. From the Conference of Cairo and Beijing to the Yogyakarta Principles, from the European provisions (sentences and documents) to European legislations, there are widespread and recurrent expressions referring to ‘gender identity’ and ‘sexual orientation’, with meanings that go beyond the mere distinction between the biological dimension of sex and the social dimension of gender, to include the instances of postmodern theory.
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Notes
- 1.
See UN, The Universal Declaration of Human Rights (1948): in art. 2 “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”; UN, International Covenant of Civil and Political Rights (1966): in art. 2.1. “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.
- 2.
D. O’ Leary, The Gender Agenda. Redefining Equality, Vital Issue Press, Lafayette (Louisiana) 1997. We may find some expressions as: gender equality, gender discrimination, gender relations, gender disparities, gender issues, gender perspectives, gender methodology, gender approach, gender policies.
- 3.
Bella Azburg, President of the Woman’s Environment and Development Organization (WEDO), maintains that the current attempt to eliminate the word gender and to restore the word sex is ‘demeaning’ and ‘insulting’: it is an attempt to turn back the gains made by women, to intimidate and prevent future progress. She doesn’t want to go back to the concept of ‘biology is destiny’, reducing women to the biological dimension.
- 4.
Selma Ashipala believes that the word should be used with the meaning given in the Platform for Action: “socially constructed roles, understood and expected by the men and women in society, as well as the responsibilities and opportunities for men and women from these roles” (ibid.).
- 5.
Marta Casco, Head of the delegation of Honduras, asked for a precise definition of gender.
- 6.
There is consolidation of the use of gender as a non-biological concept (as opposed to sex) but socially constructed, with reference to the influences of culture, the variability in time and the mutability in space of roles, behaviours, personality traits. More recently, the UN and its agencies have adopted a number of definitions of gender that include elements such as social construction and the variability of the concept in history and society, indicating with gender the roles assigned (and the value attributed to them) to women and men in different cultures. As regards the relation between gender and sex, some definitions emphasise the opposition between sex as a static category and gender as a dynamic one. Some of the definitions of the United Nations do not refer to sex or to the biological element, but focus exclusively on the social construction of gender. The United Nations Development Fund for Women, UNDP, the ILO Labour Organization, the Joint United Nations Programme on HIV/AIDS welcome this approach.
- 7.
D. O’ Leary, The Gender Agenda. Redefining Equality, cit. The author demonstrates how ‘gender mainstreaming’ is a program that the UN asked to incorporate in all commissions, agencies, intergovernmental bodies, consultants, intergovernmental organisations. Cf. G. Kuby, Die Gender Revolution. Relativismus in Aktion, Fe-medienverlag GmbH, Kisslegg 2007.
- 8.
H. Pietila,Engendering the Global Agenda. The Story of Women and the United Nations, Development dossier, NGLS, 2002.
- 9.
J. Jones, A. Grear, R.A. Fenton, K. Stevenson, Gender, Sexualities and Law, Routledge, Oxford 2011.
- 10.
For a comment on the text cf. M.O’Flaherty, J. Fisher, Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles, “Human Rights Law Review”, 2008, 8, 2, pp. 207–248. The Jurisprudential Annotation to the Yogyakarta Principles (November 2007) has also been published: it reconstructs the different jurisprudential interpretations of principles in several States.
- 11.
As introduced by Louise Arbour in International Conference on Lesbian, Gay, Bisexual, and Transgender Rights, Montreal, 26 July 2006: Statement of the Office of the UN High Commissioner for Human Right (M. O’Flaherty, J. Fisher, Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles, cit., p. 232). This indication has subsequently been developed in the International Commission of Jurists, Sexual Orientation and Gender Identity in Human Rights Law. References to Jurisprudence and Doctrine of the Inter-American System (July 2007); International Commission of Jurists, Sexual Orientation and Gender Identity in Human Rights Law, Jurisprudential, Legislative and Doctrinal References from the Council of Europe and the European Union (October 2007). The International Service for Human Rights has also contributed to this elaboration.
- 12.
The expressions ‘sexual preferences’ and ‘sexual minorities’ are also used.
- 13.
The Yogyakarta Principles, pp. 7–8.
- 14.
Ibid., p. 6 and 8.
- 15.
There have been critical reactions from the Catholic Family and Human Rights Institute, P.A. Tozzi, Six Problems with the Yogyakarta Principles, 13 April 2007 (International Organization Research Group, Briefing Paper, number 1, 2 April 2007), Downs, State of America, 9 November 2007.
- 16.
UN Declaration on Sexual Orientation and Gender Identity, 2008.
- 17.
Council of Europe, Directive 2004/113/EC and Directive 2006/54/EC.
- 18.
Preceded by Resolution on Sexual Discrimination at Work (1984).
- 19.
In particular, in the premises in paragraphs 11, 12, 23, 26, 29, 31 and in articles. 1, 2 (6), 6. See also Directive 2000/43/EC on racial equality than explicit protection against discrimination for reasons of race and ethnicity in social life (work, education, social security, health care).
- 20.
For the period 2007–2013 the European Commission, in the PROGRESS programme (Programme for Employment and Social Solidarity) includes gender among the issues of non-discrimination.
- 21.
The Parliamentary Assembly has adopted several recommendations on homosexuals (1981), on asylum and immigration for gays and lesbians (2000), on the condition of lesbians and gay people in Europe (2003).
- 22.
Rees v. The United Kingdom (17 October 1986); Cossey v. The United Kingdom (27 September 1990); B. v. France (23 March 1992); X, Y and Z v. The United Kingdom (22 April 1997).
- 23.
Sheffield and Horsham v. The United Kingdom (30 July 1998). It should be recalled that the Court held that the prohibition of homosexual relations is a violation of privacy.
- 24.
European Union Agency for Fundamental Rights, Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States, part I legal and part II social (2008).
- 25.
This reconstruction is based on the general lines of the Report Discrimination on the Basis of Sexual Orientation and Gender Identity, 2010.
- 26.
Bulgaria and Latvia.
- 27.
There is debate about what is the best interest of the child.
- 28.
In some countries there is no repayment of the national health service, and it is considered a practical deterrent.
- 29.
Poland has no specific legislation, but recognises the right to legally change sex.
- 30.
Belgium has issued an Act on Transsexualism (2007) with the modification of articles 62bis-62ter in the Civil Code.
- 31.
In Germany there is a law Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen (1980) that allows the change of name and gender in specific cases.
- 32.
This is the direction taken in Transgendergesetz (draft law in Germany 2000), which included ‘IS’ intersex status alongside M (male) and F (female).
- 33.
S. Whittle, L. Turner, M. Al-Alami. (2007) Engendered Penalties: Transgender and Transsexual People’s Experiences of Inequality and Discrimination (A Research Project and Report commissioned by the Equalities Review) p. 74.
- 34.
Diagnostic and Statistical Manual of Mental Disorders speaks of ‘gender identity disorder’ as ‘mental health disorder’; the International Statistical Classification of Diseases and Related Health Problems of the WHO speak of ‘mental and behavioural disorders’. These definitions are widely used in Europe.
- 35.
In Italy, lively discussion has focused on this area. Proposals have been put forward for a modification of the law on transsexualism in order to recognize the possibility of not changing the body, while living according to the opposite gender to one’s sex. There is discussion on the possibility of including the aggravating circumstance for crimes of homophobia and transphobia, and on whether there should be recognition of unions, records or marriage between homosexuals.
- 36.
There is a lack of recognition in: Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Cyprus, Estonia, Georgia, Greece, Italy, Latvia, Lichtenstein, Lithuania, Malta, Moldova, Monaco, Montenegro, Poland, Romania, Russian Federation, San Marino, Serbia, Slovakia, Macedonia, Turkey, Ukraine.
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Palazzani, L. (2012). Gender: From Theory to Law. In: Gender in Philosophy and Law. SpringerBriefs in Law. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4991-7_3
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