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Abstract
This paper explores the precarious state of human rights for gender-nonconforming individuals, who often exist outside of the system of international human rights law (IHRL) due to a lack of explicit legal recognition. Human rights rely on the principle of universality based on our shared humanity for their equal and inalienable applicability. Yet foundational instruments, like the ICCPR, ICESCR, and CEDAW, contain provisions for non-discrimination in order to protect various groups of people from the discriminatory application or violation of human rights. This includes discrimination based on “sex” or “other status,” however, instead of being inclusionary, these demonstrate IHRL’s reliance on the gender binary which categorizes all human beings as either men or women. Consequently, this legal invisibility for gender-nonconforming people functions as a catalyst for systemic violations, discrimination, and dehumanization of individuals.
My analysis begins by outlining two recent court cases which deal with the rights of gender-nonconforming people: Y v. France in the European Court of Human Rights and United States v. Skrmetti in the United States Supreme Court. Next, the paper problematizes the UN’s reliance on affirmative recognition in its jurisprudence, which seeks to address inequitable outcomes without disturbing the underlying patriarchal framework that generates them. Then, by leveraging human rights principles of non-discrimination, indivisibility, as well as the Yogyakarta Principles, I argue for a reconceptualization of the human subject within IHRL. This paper advocates for transformative recognition, which acts to destabilize rigid gender categories to ensure IHRL serves as a truly universal tool for protecting self-determined personhood.