On the Synergic Interpretation of Right to Gender Identity Through Freedom of Expression: Doing More Harm Than Good?

[Arifur Rahman is reading for the LLM in Human Rights at NYU School of Law as  a Arthur T. Vanderbilt Scholar. He was a shortlisted candidate for the Global Hauser Scholarship. He completed his LLB and an LLM in International Law from the University of Dhaka.]

Gender identity is usually considered a vexed idea and thus hotly debated globally. More often than not, gender identities that fail to comply with heteronormativity or challenge our “common sense” undergo severe backlash and resistance. Bangladesh, for instance, is currently witnessing a rise of anti-gender movements. In the face of serious opposition by the protesters, a transwoman was disbarred from speaking at a conference on ‘women’s rights’ recently. There is also an ongoing demand to remove the word “transgender” from the admission circular of the University of Dhaka. The rationale behind such resistance is simple: (trans)genderism transgresses the social and religious values of a (Muslim majority) country like Bangladesh (where homosexuality is already a crime). Uganda, on the other hand, passed its most contentious anti-homosexuality law that criminalises among others, simply ‘identifying’ as a homosexual justifying saving ‘moral values’. Most recently, Burundi’s President while dissing queer people as “Satan” and homosexuality as “curse” asks people to publicly stone LGBTQ persons. These situations on the one hand demonstrate the tension between gender identity and moral values and on the other hand set a bigger picture of how gender expressions can be subject to restrictions in the name of safeguarding morality. The latter directly undermines the growing trend of interpreting gender identity through the lens of freedom of expression which in turn demands to inquire, perhaps now more than ever, whether interpreting the right to gender identity in light of freedom of expression runs the risk of being counterproductive.

Gender Identity and Freedom of Expression

Gender identity forms an integral part of human beings. One’s autonomy to choose a gender identity not only manifests the ability of self-determination but also speaks to the nature of human beings as free moral persons and indeed a core component of “self-respect”. But international human rights laws rigidly marked by gender binary: male and female, remain silent on the “explicit” recognition of the right to gender identity. Although an indirect approach is often taken to include sexual orientation and gender identity by interpreting for instance ‘other status’ in Article 26 of the International Covenant on Civil and Political Rights (ICCPR), such attempts typically invoke backlash and resistance. The Yogyakarta Principles, on the other hand, clearly define the idea of gender identity (although not free from its own problems). However, because of the contested subject matter it deals with and its “soft” nature, it lacks strong influence on the domestic level. Be that as it may, there is a rise in the interpretation of the right to gender identity in light of freedom of expression.

Gender identity is considered fully realised when performed and expressed through actions therefore warranting the application of freedom of expression. In India, for instance, the Supreme Court in its landmark judgment on decriminalizing homosexuality protects gender identity by encompassing, among others, the dress, manner of speech, and the freedom to choose a partner within the broader ambit of freedom of expression. Homosexuality has, in fact, earned the status of “a form of expression”. In its advisory opinion on  Gender Identity, And Equality And Non-discrimination Of Same-sex Couples, the Inter-American Court of Human Rights (IACtHR) also stresses the necessity to interpret the right to gender identity in light of the right to freedom of expression. While acknowledging one’s identity is protected under freedom of expression of the American Convention on Human Rights, nonrecognition of gender identity itself, the court worries, could lead to “indirect censure of gender expressions” by signaling that non-normative gender expressions are not legally recognized and protected. 

The Committee on the Rights of Child in General Comment (GC) No. 20, almost in the same vein, puts stresses on the right of adolescents to freedom of expression in conjunction with their right to gender identity possibly because adolescents remain vulnerable in the complex “process of construction and expression of identity”. GC No. 34 which deals with Freedom of Expression, however, has been criticized for not including a distinctive reference to diverse forms of expression related to sexual orientation and gender identity other than dress mannerisms since gender identity evidently goes beyond the mere form of dress by incorporating other forms of expressions as well.

The Challenges of Interpreting Gender Identity in light of Freedom of Expression

Freedom of expression, as stipulated in the international human rights law, is a qualified right and thus subject to certain restrictions and at the domestic level it retains the same status (except in the US). Article 19 of the ICCPR stipulates that the enjoyment of freedom of expression and opinion can be restricted on the grounds of public order, national security, and public morality, among others. Here, public morality is particularly concerning for the enjoyment of gender identity as expressions related to gender are usually tested against traditional social and moral norms. Curtailing gender expressions through laws tends to be justified on so-called common moral values. What constitutes public morality is not however defined in international human rights laws and standards, hence, states enjoy a certain amount of latitude in this regard. 

The European Court of Human Rights, for example, in Handyside v United Kingdom, acknowledges that the authorities of a state hold a better position in comparison to international judges to set the standard for the protection of public morality as they are usually in “direct and continuous contact with the vital forces of their countries” . This undefined authority gives states the flexibility to arguably accommodate religious dogma as a means to restrict a certain form of gender expression if such expression contravenes the so-called moral or religious values. Bangladesh’s refusal to abolish section 377 which criminalizes homosexuality, for example, is firmly justified in safeguarding religious and moral imperatives. Likewise, in most of society, if not all, where heteronormativity is often the fundamental moral yardstick to assess sexual morality and gender identity, non-normative gender identity and the expressions are considered an “insult to public morality”. Even the IACtHR Advisory Opinion on the progressive interpretation of gender identity was criticized for going against traditional values.

Accordingly, the violence targeted at LGBTQI persons is usually based on the perpetrators’ intention to punish identities, behaviors, and expressions that defy conventional gender roles and challenge the male-female binary. Moreover, while restricting gender expressions that do not conform to the traditional ones, states tend to rely on a heteronormative understanding of morality and accordingly disapprove of diverse gender expressions. The resistance to limiting diverse gender identity is particularly visible when any other gender identity beyond the male and female binary is usually regarded as a Western ideological manifestation. Thus, it is considered that the so-called “queer expression” is another way to impose Western cultural imperialism upon non-western countries. In discarding the queer-sensitive interpretation of ICCPR, Zayas argues “bearing in mind that same-sex relations are considered wrong or even ‘sinful’ in many societies, a universal treaty like the ICCPR cannot be instrumentalized to impose ‘Western’ approaches on the rest of humanity”.

A Way Forward

While it is true that existing international human rights laws do not define “public morality”, the laws set some limits on the authority of states in defining such a concept. Public morals are no longer considered an “exclusive” domestic matter and states do not enjoy carte blanche in limiting a certain right. The restriction must be in accordance with law that must be just, necessary for a legitimate purpose and of course gender sensitive.  The Human Rights Committee in fact finds the criminalization of expression of (homosexual) identity incompatible with the right to freedom of expression. It is unreasonable to criminalise expression concerning homosexuality on the ground of public morals especially when heterosexual expression does not face the same consequences. To put a complete ban on the legitimate expression of one’s sexual orientation by a law fails to meet the threshold of necessity and proportionality (see here). This particularly holds true when there is a lack of consensus on criminalising homosexual behavior in a particular region or within a country. 

However, that does not necessarily solve the riddle of what happens when such morality derives from a particular religion and accordingly, there is a moral consensus as to the “sinful nature” of homosexuality. Consider for example the case of Bangladesh where Islam is constitutionally recognized as the state religion. The Committee in GC No. 22 explains that simply because the majority population follows a certain belief or there is an official state religion does not mean that impairing any right on that basis under the ICCPR is justified. Such restriction must always be imposed in light of universality of human rights and principle of non-discrimination and in a conflict between public morals and universality of human rights, the first remains subordinate to the other. It is relevant to mention here that religions are not per se the source of discriminatory behaviors but the interpretation of it by a certain group that strives to promote heterosexual norms and expressions supported by colonial laws. Probably that’s why the Committee stresses that public morals must not be derived from a particular religion or social tradition and the limitation must be tested against the core tenets of human rights such as non-discrimination. However, that should not stop states or other stakeholders from vernacularizing the right to gender identity in the sense of converting “universalistic human rights into local understandings of social justice” through religion only if it results in better implementation of the right.

As some countries across the globe still punish non-traditional gender expressions by imposing “questionable” laws, some might argue that the nature of international human rights of law as in this case “freedom of expression”, should take the blame. But that deflects the focus from the fact that human rights norms continue to be interpreted from a heteronormative and androcentric point of view and thus are “abused” in the name of saving so-called “(hetero)morality” often through colonial laws.