The confusion between gender, sex and sexual orientation in international law

Flickr Photo: United Nations Photo Permanent Premises of the International Criminal Court
Secretary-General Ban Ki-moon spoke at the inauguration of the Permanent Premises of the International Criminal Court (ICC), in The Hague, Netherlands.
A view of the ICC premises.
UN Photo/Rick Bajornas
19 April 2016
The Hague, Netherlands
Photo # 672028 | CC BY-NC-ND 2.0

 

There is a significant difference in meaning between ‘sex’, ‘gender’ and ‘sexual orientation’. While the issue of gender has received significant attention in international law, especially in human rights law, it often appears to remain difficult to disentangle terms such as ‘gender’, ‘sex’ and ‘sexual orientation’, leading to the conflation between the different terms in politics and international law. This contribution will discuss a single instance of such confusion, namely the provision in the Rome Statute of the International Criminal Court defining gender.

 

Sex, gender and sexual orientation

Before turning to the Rome Statute it is necessary to look at the manner in which ‘sex’, ‘gender’ and ‘sexual orientation’ are interpreted and how these terms refer to different things. While there is no definitive definition, there is some general indication as to how it should be interpreted, which can, for example, be seen in a report of the Secretary-General on ‘further promotion and encouragement of human rights and fundamental freedoms, including the question of the programme and methods of work of the commission.’ ‘Sex’ in this regard refers to the biologically determined differences between men and women, while ‘gender’ on the other hand refers to the social differences between men and women that are learned, changeable over time and have wide variation both within and between cultures. ‘Sexual orientation’ is another separate and independent term which refers to the type of person to whom one is attracted. In this way it can easily be distinguished from ‘sex’ and ‘gender’, as these concern who the person is, whereas ‘sexual orientation’ concerns to whom one is attracted.

 

Gender in the Rome Statute

As shown these terms can be differentiated but it is interesting to look at what relevance this has to the Rome Statute. This statute includes, as a possible crime against humanity, the persecution against a group on the basis of gender in art. 7(1)(h) ICC Statute.

Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.

Unlike the other possible groups that are mentioned in this paragraph the term gender is specifically defined under the statute in art. 7(3) ICC Statute:

For the purpose of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.

The stringent manner in which it is defined is important to note, as this paragraph not only includes a definition, but an explicit mention that no other definition is possible, which shows the clear importance ascribed to this definition by its drafters. One of the issues with this definition lies in its apparent conflation of the terms ‘sex’ and ‘gender’, which leads one to ask why it was defined as such and why it was not opted to use the term ‘sex’ in art. 7(1)(h) ICC Statute.

While the Statute thus seems to define ‘gender’ almost exclusively on the basis of sex, this is not entirely the case. The use of the qualifier ‘within the context of society’ does seem to acknowledge the fact that gender is a social construct. This has also been corroborated by the Office of the Prosecutor, which stated that the definition in art. 7(3) ICC Statute ‘acknowledges the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys’. It appears as though an attempt was made to combine the concepts of ‘sex’ and ‘gender’, but the definition in the Rome Statute does appear to focus too much on the biological traits. In this regard it is necessary to note that the French version of the statute uses the term ‘sexe’ where the English version uses the term ‘gender’.

However, it is completely clear that there was a deliberate attempt during the drafting of the Statute to narrow the definition as much as possible. It first must be made clear that the terms ‘sex’ and ‘gender’ have some history in international law, especially international human rights law. Since the Second World War there have been multiple treaties and other instruments concerning human rights and some of these specifically concentrate on discrimination against women. Throughout the decades there is a visible development away from using the term ‘sex’, which was for example used in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, towards using the term ‘gender’, which can be seen in, for example, the Beijing Declaration adopted at the Fourth World Conference on Women in 1995, the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. In most cases however it does not appear that a significant change in meaning or intention was intended, but only the wording changed. This can also be seen in the drafting history of the ICC itself as well, where the term ‘gender’ is often used to reference males and females, especially in the context of the representativeness of the Court and also when discussing what was referred to as gender violence.

 

Fear over an open term

This leads to the question as to why, when the term ‘gender’ seems to be used broadly throughout the drafting and in human rights instruments, there was a fear of states of using the term ‘gender’ without an express definition in the Rome Statute. The problem for many states was that unlike most other treaties the Rome Statute can have a direct effect and its interpretation of terms is in the hands of the Court itself. This, combined with the fact that criminal law requires clarity, ensured that a lot of the wording and definitions within the Rome Statute were heavily debated and words were very specifically chosen. Since it was argued that the term ‘gender’ can be interpreted in different ways several states felt it necessary to clarify the term ‘gender’ within the statute itself.

One would perhaps expect this was done in this way due to discriminatory intentions against transgender or gender nonconforming individuals. This does not seem to be the case as there is no evidence or even any indication that these issues were discussed. Instead the reasoning shows clearly how confusingly the terms ‘sex’, ‘gender’ and ‘sexual orientation’ are used. As already explained the definition of the term ‘gender’ within the statute is very close to the notion of ‘sex’, the reason for this was that there was a belief amongst some states that ‘sexual orientation’ could be interpreted as an aspect of ‘gender’. There is one explicit reference to this in the concern uttered by the representative for Azerbaijan during the drafting:

Thus, for instance, his delegation was concerned about the use of the word „gender“ in paragraph 1 (h) under „Crimes against humanity“. Did that provision imply that a conviction by a national court for homosexual acts might be regarded as persecution and thus fall within the jurisdiction of the Court as a crime against humanity?

Although this is the only explicit reference to this belief, it appears that the possibility for homosexual acts to possibly fall under the notion of ‘gender’ was a problematic issue for more states, especially Islamic states, as well as the Vatican.  As explained earlier this fear does not have any actual real foundation within the term ‘gender’, as ‘sexual orientation’ is a separate and independent term and would not be part of the understanding of ‘gender’. The fear that measures taken against homosexual individuals would constitute persecution under the Rome Statute was real enough for some states that it subsequently led to the confused and ambiguous definition that we now have under art. 7(3) ICC Statute.

It is interesting to note that the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights does include a similar provision concerning persecution on the basis of gender, but its drafters opted not to include a definition of the term gender within the Protocol, thereby leaving it up to the court as to how to interpret it. While it remains a question whether this Protocol will enter into force, the non-inclusion of the definition of the term ‘gender’ can be seen as a development towards a better understanding of the term ‘gender’ and its differentiation with ‘sex’ and ‘sexual orientation’. This is especially noteworthy due to the troubling trend of broadening of anti-homosexuality laws in much of Africa. Many of the signatories to the Protocol themselves have anti-homosexuality laws, which, in combination with the lack of a definition of gender, would seem to indicate that there is an understanding that ‘sexual orientation’ does not fall within ‘gender’.

 

Conclusion

The apparent view of many states that their persecution of sexual minorities should not be considered as a crime against humanity led to a confused definition. This shows the problematic understanding of ‘gender’ in many instances, since the general term of ‘gender’ already does not include ‘sexual orientation’. While the Office of the Prosecutor has made it somewhat clearer that they interpreted (the definition to focus on) gender as a social construct, there still remains a fear that the strange definition within the Rome Statute might lead to a lack of usefulness of the provision against persecution on the basis of gender.

This is just one example of the confusion that exists in international law over the terms of sex, gender and sexual orientation. It shows how easily the use of these terms can lead to problems in the drafting of a treaty. It shows the need for creating clarity on these terms, but also how difficult it is to create such clarity. The drafters attempted to create some clarity by including a definition, however the outcome was the creation of more confusion.

 

Barry de Vries is a research assistant at the Franz von Liszt Institute for International and Comparative Law, Chair of Public Law and International Law at Justus-Liebig-Universität Gieβen. His work focuses on the fields of arms control law, international humanitarian law and international criminal law.

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