Charting Transgender Rights on the International Human Rights Map
Updated: Jan 22
Shivani Dewalla is a guest contributor to Travaux. She is currently an LL.M. candidate at the University of California, Berkeley, School of Law and a member of the Berkeley Journal of International Law's symposium team.
Why is a specific international treaty to protect the rights of the transgender community needed? Furthermore, why does the dearth of such agreements pose a problem for the applicability of international human rights standards and deny the extension of domestic penal laws in the absence of inclusivity?
A section of the population born in a supposedly free world is persecuted, abandoned by their families, denied equal opportunity, and discriminated against in every walk of life solely because of how they identify themselves. Though several countries have passed laws regarding this subject, an absence of a binding international treaty leaves it to individual state authorities to conform to non-binding statutory norms.
For instance, the resolution adopted by the United Nations Human Rights Council on June 30, 2016, to extend protection against violence based on gender identity and sexual orientation does not serve its intended purpose. Adopted by a close margin of 23-18, in addition to six abstentions, the resolution is indicative of the reluctance of countries that think that universal human rights do not include the rights of transgender people. Additionally, the non-binding nature of the resolution does not obligate states to ratify their domestic laws. This limits the resolution and its vision to mere paperwork. Finally, the resolutions have blurred the lines of sexual orientation and gender identity, which has resulted in the former overshadowing the latter. A dedicated treaty would do justice for transgender people facing discrimination in every country.
It is therefore imperative that the articles of the Universal Declaration of Human Rights and International Covenant of Civil and Political Rights mandate universal transgender rights. Sexual orientation and gender identity are integral to every person’s dignity and humanity and must not be the basis for discrimination or abuse. An international treaty is necessary to make extension of rights imperative and not a subject of interpretation.
The presence of an international treaty would make transgender freedoms an integral part of global human rights precedent and ensure the proper application and extension of domestic civil liberties to trangender individuals. For instance, most penal codes of countries are binary in nature, as they define a person as a man or woman. This has led to a lack of protection of the transgender population for crimes like rape and harassment, which are codified with a gendered lens. Using international treaties to expand the definition of a person beyond the traditional binary would ensure the effective implementation of laws and extend their protection to persons who do not conform to binary gender norms. Furthermore, ratifying a treaty on an international level would compel states to extend social security schemes with a count of the transgender population in the national census indicative of their ratio in society. A formal agreement would also help create specific laws that would act as a deterrent against those who choose to abandon them.
This would lead to a change in binary education systems, reduce instances of discrimination in employment based on gender identification, ease the system to own property or open bank accounts (which are too often restricted to people identifying themselves as men or women) and extend the benefit of healthcare systems to those who do not tick the traditionally binary gender boxes assigned at birth. In a free world, the transgender population should have the right to choose a partner, start a family, and not be tortured or subjected to violence.
Adoption and ratification of a transgender rights treaty at the international level would ensure the awareness that this issue deserves. In turn, this would foster social inclusion and acceptance on the domestic level.