Courts and non-discrimination law: Reinforcing or challenging gender norms?

The dominant understanding of ‘gender’ in law is harmful. Through analysis of practices of infant genital modification, this paper shows how law strengthens sex dichotomy and maintains hierarchical gender order. The practices discussed are female genital mutilation, ritual male circumcision, and so-called normalising genital surgery of intersex children.

Regardless international human rights norms and national penal codes, children are exposed to violations of bodily integrity as their genitalia can be altered due to their culture. Law fails to recognise children as individuals if their bodies do not comply with the cultural understanding of male and female sex.

Building on Judith Butler’s theory, however, this paper explores law’s potential to challenge oppressive gender norms. Accordingly, the paper advocates for non-discrimination law provided that feminist (legal) theory is taken seriously. ‘Sex’ should be denaturalised, open to future articulation, not least in court practices.