By Samantha Singson
The International Gay and Lesbian Human Rights Commission (IGLHRC) recently released a handbook for activists on how to use the United Nations committee, responsible for overseeing the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to introduce "fluid" concepts of "sexual orientation" and "gender identity" into the established human rights arena. The IGLHRC handbook's "key terms" glossary deems gender and sexuality not to be rooted in biology, but based on "social constructs."IGLHRC acknowledges that the original drafters of CEDAW would have found today's advocacy to promote "sexual orientation and gender identity simply unimaginable" but argues CEDAW is an "evolving document" that could "accommodate change over time." IGLHRC emphasizes that the CEDAW convention's prohibition on discrimination based on biologically-determined "sex" does not encompass the "rainbow" of orientations and expressions, but nevertheless urges activists to use terms such as "gender identity" and "gender expression" which "may or may not correspond with the sex assigned at birth."
When states ratify the CEDAW convention, they commit to presenting a report every four years about their country's progress toward implementing its provisions. The CEDAW Committee is comprised of 23 private citizens who meet periodically to review these reports. Non-governmental organizations may submit "shadow reports" offering their own evaluation of their country's compliance with the CEDAW Convention. Shadow reports from radical groups generally receive a very favorable reception from their radical counterparts on the CEDAW committee.
Claiming that states' official submissions to the CEDAW Committee "almost never address discrimination on the basis of sexual orientation or gender identity," the handbook teaches activists to craft shadow reports for submission to the CEDAW committee that do. IGLHRC boasts that such shadow reports have caused "the CEDAW Committee to ask governments pointed questions about discrimination against [Lesbian, Bisexual and Transgendered] and other same-sex practicing women in their countries" and the inclusion of "sexual orientation" in the committee's non-binding recommendations to the state for further action.
Over the last few years, the CEDAW committee has included "sexual orientation" and "gender identity" in almost a dozen of its concluding recommendations. IGLHRC hopes that its continued efforts will not only lead to more questioning of countries by the CEDAW committee but also lead to the creation and adoption of a new "General Recommendation" on discrimination based on "sexual orientation" and "gender identity." They also hope that national courts will begin to refer to such committee comments and recommendations.
In the C-FAM paper "Rights By Stealth," authors Susan Yoshihara and Douglas Sylva explain that General Recommendations "are the treaty body members' own interpretations of the articles of the conventions" and that "once created, they serve as the committees' official interpretations." Even though states never agreed to any provisions in the CEDAW treaty on "sexual orientation" and "gender identity," a new general recommendation on the subject signals that the committee will seek to expand the treaty beyond the boundaries set by those who carefully negotiated its language.
Critics point out that "sexual orientation," "gender identity" and "gender expression" have never been included in any negotiated, binding UN document. Attempts to include "sexual orientation" as a protected non-discrimination category akin to race, sex or religion have met with staunch resistance by member states who fear that making sexual orientation a non-discrimination category could lead to judicial imposition of special legal rights such as same-sex "marriage."
