GENDER VARIATION AS A HUMAN RIGHTS ISSUE

In recent years, trans issues have made their way into mainstream media, with positive representations of trans persons increasingly appearing in popular culture. Cultural awareness and social recognition of many forms of gender roles, gender identity and gender expression have continued to progress around the globe. Besides, the so-called ‘trans taboo’ seems to be diminishing, as more people find their way to care programmes. Over the last decade, trans rights and gender variation as a legal and human rights issue have also been high on the agenda, both at the international and national level. Indeed, the improved registration of and attention for the prevalence of gender variation and gender incongruence is accompanied by the legal attention for the ofter far-reaching requirements trans persons have to comply with in order to obtain legal recognition of their actual gender identity. In many countries worldwide, trans persons have to comply with invasive medical requirements, such as gender affirming surgery, sterilising surgery and/or hormonal treatment, in order to have their officially registered (birth) sex changed in light of their gender identity.

While the increased social recognition of trans persons has mostly resulted in higher acceptance rates of gender incongruence and gender variation, worldwide data show that trans persons still remain among the most vulnerable groups in society. Not only are trans persons ofter subjected to verbal, physical and material violence, their legal status is ofter inferior to that of cisgender persons. However, a small but rapidly growing number of (mostly European and South-American) States have recently reformed their legal framework of legal gender recognition, by allowing trans persons to change their official sex registration on the basis of gender self-determination, i.e. without any medical requirement. Nevertheless, despite the considerable progress over the last decade, the law has arguably remained largely blind to the subtleties of gender identity, and persists in trying to assign individuals legal and social identities that are not their own, based on criteria which themselves are uninformed gendered assumptions and stereotypes. This situation not only denies the individual identity of a considerable group of human beings, but arguably also affects the legitimacy, pertinence and proportionality of government performance that is connected to the registered sex and/or gender identity

I had the pleasure of witnessing the genesis of this book, which is based on the author's Ph.D. thesis, written at Ghent University in the context of a broader research project on ‘human rights integration’. Valeska David joined the team relatively late, as a result of which she had only three years to complete her doctoral work, instead of the four years that are common in Belgian law faculties. Many people in these circumstances would opt for a simple research design to maximize feasibility. While that may be a sensible thing to do, it does not match everybody's personality though. This researcher did not want external circumstances to interfere with her scholarly aspirations. And these were ambitious. She did not choose to focus on one supranational human rights jurisdiction, but rather opted for studying the two most important regional courts. Neither did she want to zoom in on one type of human rights violation, or to conduct her analysis from a single theoretical angle. This resulted in a very challenging research project, that Valeska was able to complete successfully thanks to her talent and dedication, as well as her versatile and creative intelligence.

HUMAN RIGHTS INTEGRATION FROM A RIGHTS HOLDERS’ PERSPECTIVE

The project ‘The Global Challenge of Human Rights Integration: Towards a Users’ Perspective‘ (2012–2017), was sponsored as an Inter-University Attraction Pole (IAP) by the Belgian Science Policy Office (BELSPO). Research teams at five Belgian universities (Ghent University, Antwerp University, Vrije Universiteit Brussel, Universite Libre de Bruxelles, and Universite Saint Louis Bruxelles), as well as at Utrecht University in the Netherlands, collaborated in’ the study of human rights law as an integrated whole from a users ‘perspective’. The starting point of the research was the finding that both rights holders and duty bearers under human rights norms are confronted simultaneously with a multitude of human rights provisions differing as to their scope, focus, legal force and level of governance. This non-hierarchical accumulation of human rights provisions has resulted in a complex and uncoordinated legal architecture that may in some circumstances create obstacles for effective human rights protection. Valeska David's book can be seen as a keystone of this project, as it contributes to several of its central dimensions, and brings these to a higher level.

It is clear from Roseman’s excellent chapter that there is not currently an international human right for aspiring parents who cannot otherwise reproduce to access gestational surrogacy. While claims for such a right exist and discussions are taking place about its contours, it would seem that currently we cannot even say that such a right is emerging under international law. In fact, gestational surrogacy is typically considered as an actual or potential violation of human rights. Yet Roseman sketches a convincing scenario in which the de-medicalisation of infertility, and the push for ever fuller inclusion of (inter alia) persons with disabilities and same-sex couples would lead to a new view in which banning gestational surrogacy would be untenable under international human rights standards, and in which states might even have a positive obligation to facilitate access to it.

The financial crisis throughout Europe has led many countries to adopt austerity measures, some of which have imposed harsh costs on citizens. Fundamental rights provide one framework for assessing the impact of both the economic crisis and the austerity measures. Several studies have documented the effects of the crisis and austerity measures on fundamental rights, in particular economic and social rights such as the right to work, to social security, to housing, health and education, but also civil and political rights including the right of access to justice, and the freedom of assembly and expression.1

Human rights law scholarship is flourishing. Today's mid-career human rights law scholars in Europe vividly remember the birth and early childhood of their discipline. Throughout the 1990s, many law faculties were creating their first human rights chair and many academic human rights centres were founded. Gradually, ‘ human rights law ’ came to be seen as a discipline in its own right rather than as a part of constitutional law or public international law. In the meantime, the discipline of human rights law has moved to the next level, characterised by increased specialisation. Especially when it comes to research, not so many legal scholars of human rights identify as ‘ generalists’, covering the entire field of human rights law. Indeed, both the proliferation of the output of some of the human rights monitoring bodies (in particular the European Court of Human Rights (ECtHR)) and the expansion of scholarship in this field have made it impossible for any single scholar to be completely up to date with all developments and insights. As a result, most scholars self-identify as experts in one or more sub-fields of human rights law, such as privacy law, free speech, minority rights or ECtHR case law. This is a positive development, testifying to the increasing maturity of the discipline and leading to ever more sophisticated insights. Yet at the same time, there is a risk that a focus on the trees might obscure the wood. As the human rights landscape expands, a holistic view becomes more, not less, relevant, and the same holds true for the study of the interactions and connections between different features in that landscape. This is an argument in favour of cherishing a degree of ‘generalism’ in human rights law scholarship, and a call for experts in sub-disciplines to occasionally reflect on the positioning of the contents of their box of choice within the broader field.

It may be argued that such a reflection is also relevant for those actors who play a crucial role in interpreting human rights law and who are by definition situated within their respective boxes, that is to say, supranational human rights monitoring bodies. Each of these bodies has its own jurisdictional and/or thematic specialisation, as well as its own mandate and context. This regularly results in idiosyncratic reasoning.

‘Human rights’ is an exceptionally strong brand name. In comparison with this giant, international criminal law and international humanitarian law are little-known dwarves. In everyday discourse, as well as in writings by scholars from outside the law, human rights often seems to absorb international criminal law and/or international humanitarian law. For example, in contemporary critiques of the human rights project, criticism of the International Criminal Court holds a central place, regardless of the fact that it is not, as such, a human rights body. In other situations, the lines between human rights law and its next-door neighbours are blurred or contested. A prominent example is found in discussions of the ‘war on terror’.

Hence, when human rights lawyers explore the reality of fragmentation and the desirability of integration within the context of human rights law, it is meaningful to include in the scope of the analysis those parts of the broader human rights project that are, technically speaking, hosted by other legal disciplines. There is such a thing as human rights law ‘in the broad sense’.

This is why a research project on ‘The Global Challenge of Human Rights Integration’, sponsored by the Belgian Federal Science Policy (BELSPO, 2012 – 17), included a work package that focused on ‘the fuzzy borders of human rights law’. At the project's flagship conference in Ghent in December 2015, this resulted in a track on ‘Convergence and Divergence between International Human Rights Law and Other Branches of International Law’. A selection of the papers that were presented in that conference track has now been assembled in this volume.

In promoting scholarship that adopts a holistic perspective of the (broad) human rights project, the ‘Human Rights Integration’ project is not pursuing an agenda of unification. Its aim is much more modest and nuanced. An integrated human rights protection system is a human rights system in which the different actors, operating at different levels of jurisdiction, and with different mandates and specialisations, nevertheless share an awareness of being part of that bigger project, and reflect upon their role in it and their relationship to other nodes in the same network.