October 10, 2019 (C-Fam) — In a new treaty, the General Assembly may scrap the definition of gender as “male and female” currently in international law and endorse a definition of gender as “socially constructed.” The new definition would open the door to 100+ “genders” in binding law.
The International Law Commission has asked the General Assembly to discard the legal definition of gender in international law as “the two sexes, male and female, within the context of society.” That hard-fought definition was decided in the Rome Statues creating the International Criminal Court and excludes any “meaning different from the above.”
The left-leaning commission proposed the change in a new treaty on the prosecution of crimes against humanity that will be reviewed by the General Assembly's legal experts later this month.
In making the recommendation, the commission cites “several developments in international human rights law and international criminal law.” As evidence, the commission lists the non-binding opinions of human rights bodies and other international law entities who promote gender as a social construct, including the notions of “sexual orientation” and “gender identity.”
The commission cites, for instance, the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, who has written that gender is “each person's deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth.”
The report also cites the prosecutor of the International Criminal Court, according to whom gender is not a biological reality but a “social construction” related to the “accompanying roles, behaviors, activities, and attributes assigned to women and men, and girls and boys.”
The legal effect of discarding the Rome Statute's definition of gender will be to enshrine gender as a social construct in international law. It wouldn't merely leave the definition of gender open to each country's national legislation to define, as some may believe. Far from it. Because of the elaborate rationale in the report of the commission, dropping the definition will have the legal effect of defining gender in international law very broadly.
The request is likely to attract controversy in the General Assembly. The Commission told the General Assembly in the last two years that it would not change any of the definitions from the Rome Statute in this new treaty. And it has gone back on its word because of intense lobbying from LGBT groups.
Moreover, the commission wholly overlooks the fact that a majority of countries do not consider gender as a social construct. Indeed, the UN entities and bodies cited by the commission go further than most countries' laws.
Through 2019, only seven countries allow gender change based on self-identification alone, according to the pro-LGBT group Amnesty International.
Even in the roughly 40 other countries where individuals are allowed to legally assume an identity different from their biological sex, countries restrict who may do so and under what circumstance.
In most countries identity change is only permitted after a psychiatric determination of gender dysphoria or a surgical operation to mutate the sexual physiognomy of an individual. In addition, some countries require individuals to divorce their spouses and do not allow individuals with children to change their gender.
The sixth committee of the General Assembly is scheduled to review the report of the International Law Commission, where the new treaty is contained between October 28 and November 6.
Published with permission from C-Fam.