The UN says trans people should self-determine our gender. If we cannot, we cannot exercise our human rights, and this is sex discrimination against women. So Victor Madrigal-Borloz, the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, wrote to the British government supporting the Gender Recognition Reform (Scotland) Bill.
Efforts to delay or dilute the Bill use falsehoods based on stigma and prejudice, he says. Passing the Bill is the government’s obligation under international human rights law. Preventing violence against women requires protection of trans people.
In 2021, the expert made a year-long inquiry into gender frameworks, considering hundreds of academic papers, 42 submissions from member states, and dozens of expert consultations. He concluded:
International human rights law says gender identity must be protected from discrimination and violence. Legal recognition of gender identity by self-determination is necessary to deconstruct institutional and social causes of discrimination and violence. But anti-trans campaigners use stigma and prejudice to artificially create moral panic and perpetuate violence.
In 2018, he considered international human rights law to dismantle systems of pathologisation, stigma and prejudice against trans people. He concluded self-determined gender is a cornerstone of a person’s identity, so protected by the human right to recognition before the law.
The UN Committee on the Elimination of Discrimination against Women said States should eliminate intersectional discrimination, including on the basis of gender identity. It said the Convention on the Elimination of Discrimination against Women applies to gender discrimination as well as sex discrimination. UNESCO says discrimination based on gender identity is unlawful. So do the UN Human Rights Committee, the UN Committee on the Rights of the Child, and other bodies. Self-determination is necessary for our mental and physical health.
The UN understands gender to include real or perceived sexual orientation, gender identity and gender expression. Gender-based analysis transcends the sex binary. UNESCO says sex discrimination covers not only physiology but also the social construction of gender stereotypes. So a State should allow citizens to change their gender markers on official documents.
The UN Working Group on Discrimination against Women and Girls says that not conforming to gender stereotypes makes people, especially trans women, vulnerable to violence and discrimination. The idea that people can be sorted at birth into either male or female “unduly restricts freedom”.
The European Court of Human Rights recognises a right to self-determination of gender as “one of the most intimate aspects of a person’s private life”.
The Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence defines gender as “the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men.” It prohibits gender identity discrimination. Here, protection for trans is inextricably linked to protection for everyone who ever had a desire outside their assigned at birth stereotype. Because that is how it is in real life: if authoritarians want to control people by enforcing gender stereotypes, they first must drive the trans people into hiding. Where there are trans people unafraid to be ourselves, gender stereotypes are subverted.
An EU directive, 2006/54/EC, says the principle of equal treatment of men and women does not just apply to sex discrimination, but also gender reassignment discrimination.
The Organisation of American States has 35 members including the US. Its convention on eradication of violence against women 1994 initiated its approach to gender-based violence. Since 2008 its General Assembly resolutions have condemned violence and discrimination based on gender identity, and the core state obligation of non-discrimination covers gender identity.
The African Commission on Human and People’s Rights 2014 Resolution on protection against violence on the basis of sexual orientation or gender identity (SOGI) says gender identity discrimination is forbidden under the African Charter.
He quotes the Yogyakarta Principles on legal recognition of gender identity, which were not a claim of right but a recognition of rights in human rights treaties. States have an obligation to provide a simple system for gender recognition based on self-identification. It should not require abusive requirements, such as a medical report, surgery, sterilisation or divorce. It should acknowledge nonbinary identities, and include children under the Convention on the Rights of the Child.
Countries including Argentina, Belgium, Brazil, Colombia, Denmark, Iceland, Ireland, Malta, New Zealand, Norway, Portugal, Switzerland, and Uruguay have abolished the need for a medical report. For people under 18, where their parents or guardians will not consent the court can. In Norway the lower age limit is six, with parental consent.
Anti-trans campaigners say that restriction on trans people is necessary to protect cis people. But the Expert states obstacles to legal gender recognition do not protect women. We should be judged as individuals, not as a group. Any restriction on an individual trans person must not be based on stigma or prejudice, but on evidence that it is the only way to achieve reasonable aims.
The Expert states there is no evidence that current restrictions on gender recognition in Scotland, which are the same as those which will be in England indefinitely, are remotely connected to protection from sexual violence. Trans women are not “predatory males”.
The expert says “gender critical” ideology mimics patriarchal reduction of women to reproductive functions, and ignores feminist scholarship. A fraudulent or predatory person might pretend to be part of any minority in order to find victims, and that should not restrict the rights of any minority.
250m people live in countries which have self-declaration of trans people. 100m more live in regions within countries which have self-id by regional law, including Kansas, Nevada, Quebec, Baja California, Catalonia, and Tasmania. Nepal and Pakistan allow official self-id as nonbinary. The expert has no information that predatory men have used the self-id process for the purpose of perpetrating sexual violence. Where trans women are criminals, they have sought gender recognition because they are trans, not to enter segregated spaces.
So he calls on Scotland to enact the Bill. The implication is that England and Wales should do the same.