How should official documents record the sex/gender of transgender people? Should transgender women be able to access female bathrooms? In the United Kingdom and the European Court of Human Rights, the law has often dealt with such issues through the lens of “gender recognition”, that is, on what criteria should the law recognise the gender of a person. This paper will critique this gender recognition jurisprudence from the perspectives of essentialism and assimilationism, two concepts which work both in tandem and in tension with each other to disadvantage minorities. It will then assess whether a shift from the lens of “gender recognition” to that of “transgender discrimination” might address such concerns. In doing so, lessons will be drawn from disability discrimination law. The paper will finally conclude with thoughts about the relevance of essentialism and assimilationism, and identity politics more generally, to discrimination law.
A common argument is that more women judges will make the judiciary more representative of the community it serves and thereby increase the democratic legitimacy of the courts. This argument assumes that there is something different about female judges when compared to male judges. This paper uses 15 years of demographic data to test that assumption. Just how different are male and females judges in Australia? And have those differences, if any, changed over time?
The focus of this paper is not just on characteristics such as religion or race but on the social experiences of judges. How much unpaid domestic work do male and females judge do? How do male and female judges travel to work ? Do male and female judges engage in voluntary community work? Do male and female judges have internet access at home ?
The paper concludes with some observations about why social experiences of judges, both female and male, should matter in arguments about the representativeness of the judiciary.
The paper examines a conflict-centered subnational incorporation model of the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), through the lens of an abortion case in Argentina: “Case of L.M.R.” from the Province of Buenos Aires. This case was brought by feminist organizations to the Human Rights Committee after a 19 year-old with a permanent mental disability was denied a non-punishable abortion in a public hospital. The case was highly visible in national and local media, generating the first provincial health policy regarding non-punishable abortions in the country. The provincial Superior Tribunal advanced an interpretation of the de facto total ban on abortion following human rights law arguments. This process of subnational mobilization entailed an incorporation of human rights law that could be interpreted as an informal enforcement mechanism, and as a channel contributing to human rights effectiveness and democratic legitimacy.
In October, 2017, the European Parliament (EP) adopted a resolution on
combating sexual harassment and abuse in the EU. This document
includes, among others, a statement that the EP “welcomes initiatives
such as the #MeToo movement that aim to report cases of sexual
harassment and violence against women”. The paper aims to consider the
following questions: whether an institution like the EP is supposed to
formally express support for a very young social movement without
accountable leaders; whether there is a risk of unintended impacts if
the different forms of discrimination and abuse against women,
undoubtedly rooted in the same soil, are discussed in the same
sentence; whether the principles of fair trial and the procedural
rights of defendants/respondents should be mentioned in a document
like this, at least for political reasons. The author claims that
these questions may be crucial in the light of a major contemporary
phenomenon, namely the erosion of the human rights consensus.
This paper will examine the long and ongoing development of what has become a worldwide war by conservative religious actors on the use of the English word “gender” and on the embodiment in law of rights claims it is thought to encapsulize, including feminist, LGBT, and reproductive rights claims. It will highlight the central but submerged role concerns about recognition through local sexual democracy of transgender identity and resulting apocalyptic fears about the future security of human nature have always played for the two popes who have most directly shaped the contours of this war, Benedict XVI and Francis, focusing on the central role the particular constitutional culture of each man’s country of origin played in shaping his concerns and commitments. Both Germany and Argentina, at the time precisely before each man’s departure for Rome, were staking out a place in the vanguard of trans rights. Germany’s 1978 Constitutional Court decision protecting trans identity as free development of the personality first moved Ratzinger in the early 1980s to formulate opposition to what he came to call gender ideology and Argentina’s 2012 law on gender identity motivated Francis to continue the war with even greater urgency.