Optional but Unequal: Why a Sex-Based Turn and a New Optional Protocol Could Undermine the Global Fight Against Gender-Based Violence

[Vashti Ortego is the Global to Local Advocacy Officer at IWRAW Asia Pacific, working on gender equality and women’s human rights. She is a transfeminist from the Visayas in the Philippines.]

Introduction

For more than three decades, the international community has recognized violence against women and girls as a form of gender-based discrimination. This understanding is firmly grounded in the practice of the CEDAW Committee, which has clarified that discrimination against women, as defined in article 1 of the Convention, includes gender-based violence and, as articulated in its background paper on gender-based violence against women and girls, has consistently addressed such violence across all aspects of its work, including State dialogues, concluding observations, General Recommendations, and its jurisprudence under the communications and inquiry procedures. This practice is reflected notably in General Recommendations 12, 19 (paras 6-7) and 35 (paras 1, 2, 9), which further explain that the term “gender-based violence against women” makes explicit the gendered causes and impacts of such violence. No State has opposed or challenged the Committee’s competence in this area. The 1993 UN Declaration on the Elimination of Violence against Women and more recent global frameworks reinforce that gender-based violence is shaped by social and political contexts, not simply biological differences.

A new debate is now emerging at the United Nations. Recent negotiations at CSW69 and the Beijing+30 process saw certain states resist the use of terms such as gender and concepts associated with diversity and inclusion. During the adoption of the CSW political declaration, the United States issued a statement emphasizing the use of language that defines women as biologically female and men as biologically male as a means of protecting women and girls. Argentina and Egypt similarly entered reservations regarding references to gender in the negotiated outcome. 

At the same time, the current UN Special Rapporteur on Violence against Women and Girls, Reem Alsalem, has increasingly framed violence primarily as sex-based. This approach is evident across multiple interventions. In her June 2025 report to the Human Rights Council, Sex-Based Violence against Women and Girls: New Frontiers and Emerging Issues (paras 4, 5, 7, and Annex para 3), she defines “sex” as a biological category distinguishing males and females, referencing divergent reproductive pathways, and frames “gender” as supplementary to sex. Violence against women and girls is defined as a form of severe gender-based violence arising from social and cultural norms pertaining to sex. In this framework, biological sex serves as the primary analytical lens, while gender functions as a supplementary category.

This framing has been consistently communicated in other contexts. In her letter to the UK Government in November 2022 regarding the Scottish Parliament’s Gender Recognition Reform Bill, Alsalem raised concerns about potential risks to women’s safety and dignity based on biological sex and highlighted possible abuses of self-identification processes. During the CEDAW Day of General Discussion on women’s participation in February 2023, she encouraged the Committee to examine “the characteristics of sex and sex-based rights” across politics, sports, and other areas. In her August 2024 report on women’s participation in sports (paras 90b, 11, 12), the Special Rapporteur emphasized the importance of biological sex distinctions and recommended that female categories in organized sports be restricted to individuals whose biological sex is female. In this report, trans women are treated as male, conflating gender identity with biological sex.

These interventions reflect a consistent pattern. There is a shift toward a sex-based conception of violence and women’s rights that departs from the established interpretive foundations of CEDAW. General Recommendation 35 and the Beijing Platform for Action ( para 113) situate violence against women and girls within broader systems of gendered power and inequality, rather than as an expression of biological difference. By re-centering sex and marginalizing gender as an analytical category, this approach risks obscuring the social, political, and economic structures that produce discrimination, as well as the intersectional dimensions of women’s experiences.

These developments coincide with renewed calls to negotiate a new Optional Protocol to CEDAW on violence against women. During CEDAW’s 91st session, the SRVAW met with the CEDAW Committee and briefed them on her forthcoming position paper concerning a proposed Optional Protocol to the Convention on gender-based violence against women. The meeting underscores that the sex-based framing advanced within the SRVAW may impact the future development of CEDAW’s normative framework.

Together, these trends risk reopening settled treaty interpretations and practice, weakening existing protections, and creating a fragmented system of rights. This post examines the legal implications of these proposals and argues for strengthening the existing framework rather than negotiating new instruments that could dilute established obligations. This post examines the legal implications of these proposals and argues for strengthening the existing framework rather than negotiating new instruments that could dilute established obligations. It proceeds in four parts. It first explains why CEDAW already constitutes a coherent and evolving legal framework capable of addressing all forms of gender-based violence. It then examines the risks associated with negotiating a new Optional Protocol, particularly the creation of uneven and selective protections. The post next analyzes the legal and conceptual implications of the emerging sex-based framing of violence within UN processes. It concludes by arguing that strengthening existing mechanisms, rather than creating new instruments in a politicized environment, is the most effective path for advancing accountability and protection. [I would suggest adding a roadmap here]

CEDAW as a Living and Coherent Framework

In a recent public statement, the CEDAW Committee affirmed that the Convention already covers all forms of gender-based violence across every article. According to the Committee, CEDAW provides legally binding and universal protections that are not subject to political discretion. General Recommendation 35 confirms that gender-based violence constitutes a violation of the prohibition of discrimination.

The Committee also warned against the proposal to develop a new Optional Protocol. It has emphasized that CEDAW functions as a living instrument under the general rules of treaty interpretation. Article 31(1) of the Vienna Convention on the Law of Treaties provides that a treaty shall be interpreted in good faith in accordance with the ordinary meaning of its terms, in their context, and in light of its object and purpose. Articles 31(3)(b) and (c) further require that interpreters take into account subsequent practice in the application of the treaty that establishes the agreement of the parties regarding its interpretation, as well as any relevant rules of international law applicable in the relations between the parties. 

Aside from Human Rights Treaty Bodies, this approach to treaty interpretation is well established in international law and has been applied across a range of international adjudicative bodies. The International Tribunal for the Law of the Sea has described the United Nations Convention on the Law of the Sea as a living instrument in its Advisory Opinion (para 130) capable of responding to new scientific knowledge and emerging environmental challenges. Similarly, the International Court of Justice has relied on evolutionary interpretation as part of the ordinary application of the general rules of treaty interpretation. Furthermore, the European Court of Human Rights, the Inter-American Court of Human Rights (para 41) have consistently recognized that regional human rights treaties must be interpreted as living instruments in light of contemporary conditions.

Through this interpretive approach, the Convention has evolved to address contemporary challenges such as digital violence, conflict-related violations, and intersectional harms without the need for new agreements. CEDAW’s strength lies in its interpretive coherence and adaptability.

A separate protocol risks undermining this coherence. Instead of filling a legal gap, it could create parallel obligations that vary from one state to another. This would weaken the clarity and universality of protections that currently exist under CEDAW.

Optional Protocols and Uneven Rights Protection

Optional Protocols can strengthen human rights treaties, but they also introduce the risk of selective universality. Treaty practice across the UN system demonstrates this pattern.  Optional Protocols differ in purpose. Some create new substantive obligations for States, while others establish procedural mechanisms, such as communications and inquiry processes, without adding new duties under the parent treaty. The first two Optional Protocols to the Convention on the Rights of the Child, which address children in armed conflict and the sale of children, have broad ratification. By contrast, the third Optional Protocol, which created a communications procedure, has far fewer ratifications and therefore uneven global impact.

A similar dynamic is evident in the Second Optional Protocol to the International Covenant on Civil and Political Rights, which focuses on the abolition of the death penalty, and in the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. Both are ratified by far fewer states than their parent treaties. As a result, individuals enjoy different levels of protection depending on geography and political will rather than on universal legal principle.

A new Optional Protocol to CEDAW would likely follow this trajectory. States with strong commitments to gender equality might ratify it, while others could opt out. Some might even attempt to argue that the new protocol either narrows or redefines the original Convention’s obligations on violence against women by claiming, for example, that the Optional Protocol expresses an intentional limitation (expressio unius), or that it creates a lex specialis regime that supersedes general provisions of CEDAW. Others might invoke subsequent agreement or practice under Article 31(3)(b) of the VCLT to assert that CEDAW’s original scope is now limited to what the Optional Protocol specifies. Such arguments are doctrinally unsound. Under articles 31 and 32 of the Vienna Convention on the Law of Treaties, treaties must be interpreted in good faith, in accordance with their ordinary meaning, in context, and in light of their object and purpose. An Optional Protocol, particularly one that is not universally ratified, cannot be invoked as subsequent agreement or practice to diminish or displace binding obligations already contained in the Convention. Longstanding CEDAW and interpretive practice clearly affirm that gender-based violence falls within the scope of non-discrimination under the Convention. ongstanding jurisprudence that clearly affirms that gender based violence falls within the scope of non-discrimination under CEDAW. 

The Rise of Sex Based Framing and its Legal Implications

The increasing emphasis on sex-based violence in certain UN processes raises conceptual and legal concerns. By focusing primarily on biological sex, this approach minimizes gender as a structural and relational category that describes the distribution of power within societies. It departs from the analytical foundations of CEDAW General Recommendation 35, the 1995 Beijing Platform for Action, and several regional human rights instruments such as the Belém do Pará Convention, the Maputo Protocol, the African Convention on the Elimination of Violence Against Women and Girls (AU-CEVAWG), the Istanbul Convention, and the ASEAN Regional Plan of Action on the Elimination of Violence against Women.

These instruments consistently treat violence as a product of gendered inequalities rather than as an inevitable consequence of biological sex differences. A sex based framing risks obscuring the social, political, and economic conditions that shape discrimination. It may also marginalize women whose experiences are influenced by multiple, overlapping identities, including race, class, disability, indigeneity, and sexuality.

Recognizing these concerns, a coalition of UN Special Procedures issued a joint statement reaffirming that gender is essential to analyzing discrimination and violence. They emphasized that effective legal and policy frameworks must address both sex-based and gender-based discrimination, since these forms of inequality operate in different ways and require different forms of analysis. This position aligns with the longstanding interpretive practice of CEDAW and with feminist legal scholarship that has shaped global standards on violence against women.

Risks of Negotiating a New Optional Protocol in a Politicized Environment

The renewed call for a new Optional Protocol comes at a time of heightened political tension surrounding gender equality. Treaty negotiation is not a neutral or technical exercise. It provides an opportunity for states to redefine key terms, dilute established obligations, and introduce restrictive concepts. In the current climate of anti gender backlash, a drafting process could produce weaker standards that undermine decades of legal progress.

A new protocol could also create confusion within domestic legal systems. States that ratify both instruments could face overlapping or inconsistent obligations, while states that ratify only one would leave women and girls with uneven protections. The result would be a fragmented legal framework that reduces the normative clarity that CEDAW currently provides.

By contrast, the existing 1999 CEDAW Optional Protocol provides mechanisms for individual communications and inquiries into grave or systemic violations. Strengthening its implementation, expanding awareness among civil society actors, and promoting further ratification would be a more effective strategy for ensuring accountability.

Strengthening What Already Exists

A more constructive approach would focus on reinforcing existing frameworks rather than creating new ones. Several steps can advance this goal.

First, states should reaffirm the gender-based understanding of violence articulated in General Recommendation 35 and maintain conceptual clarity between sex and gender. This is essential for addressing structural discrimination.

Second, states should enhance support for the CEDAW Committee’s follow-up and inquiry mechanisms. Increased resources and broader ratification of the existing Optional Protocol would improve access to remedies.

Third, regional human rights mechanisms should be leveraged more effectively. Instruments such as the Belém do Pará Convention, the Maputo Protocol, and the Istanbul Convention provide complementary and enforceable standards for preventing and addressing violence.

Fourth, advocates and policymakers must continue to defend gender and intersectionality as essential analytical tools. Removing or weakening these concepts would undermine the ability of international law to address the full range of inequalities that women and girls experience.

Conclusion

International human rights law develops most effectively through interpretation rather than the creation of new treaties. CEDAW demonstrates this capacity clearly. Through its General Recommendations and jurisprudence, the Committee has developed a comprehensive and legally binding understanding of gender-based violence that reflects contemporary realities.

Proposals to create a new Optional Protocol arise at a moment of ideological contestation that risks weakening instead of strengthening protections. A new instrument could open the door to regressive definitions, undermine universality, and create uneven standards of rights. The path forward lies in reinforcing the existing legal framework and maintaining the integrity of established norms.