Gender identity and expression

Definition

Gen­der iden­tity refers to each per­son’s inter­nal and indi­vid­ual expe­ri­ence of gen­der. Peo­ple have their own sense and right to decide whether they want to be a woman, a man, both, nei­ther, or any­where along the gen­der spec­trum. Gen­der iden­tity may be the same or dif­fer­ent from birth-assigned sex. Gen­der iden­tity refers to how a per­son pub­licly expresses or presents their gen­der. Gen­der can be expressed through behav­ior and out­ward appear­ance, includ­ing dress, hair, make-up, body lan­guage, and voice. Pro­nouns are com­mon ways of express­ing gen­der. Gen­der expres­sion is sep­a­rate and inde­pen­dent from sex­ual ori­en­ta­tion and sex assigned at birth.

While glob­ally there is an increas­ing accep­tance of the fact that gen­der exists on a spec­trum instead of a binary choice between man or woman, there are still many laws and poli­cies lack­ing inclu­sive lan­guage with respect to gen­der-diverse pop­u­la­tions. This per­pet­u­ates stigma and vio­lence, pre­dis­pos­ing gen­der-diverse pop­u­la­tions to poor health out­comes and human rights vio­la­tions. Fail­ure to rec­og­nize gen­der-diver­sity pop­u­la­tions is detri­men­tal to con­trol of HIV because there is a lack of sen­si­tiv­ity towards the needs and demands of key pop­u­la­tions and vul­ner­a­ble groups. Soci­etal stigma leads to impov­er­ish­ment and increases vul­ner­a­bil­ity. This in turn increases the propen­sity to be exposed to sex­ual vio­lence and deprives access to health­care and pre­ven­ta­tive ser­vices because of dis­crim­i­na­tory treat­ment by the health­care providers.

Reports by the Spe­cial Rap­por­teur on the Right to Health reflected in the Lan­guage Com­pendium rec­og­nize that to achieve a com­pre­hen­sive health response to vio­lence it is nec­es­sary to adopt “an inclu­sive and non-binary approach to gen­der and gen­der-based vio­lence.” Laws, poli­cies, pro­grammes, and ser­vices address­ing gen­der-based vio­lence should be “inclu­sive of all per­sons, with or with­out dis­abil­i­ties, chil­dren and adults, and should include cis­gen­der, trans­gen­der, non-binary, queer and inter­sex peo­ple.”

Expert precedents

2022 Report of the Special Rapporteur on the Right to Health

• “To achieve a com­pre­hen­sive health response to vio­lence, it is nec­es­sary to adopt an inclu­sive and non-binary approach to gen­der and gen­der-based vio­lence, and must ensure that all laws, poli­cies, pro­grammes and ser­vices address­ing gen­der-based vio­lence are inclu­sive of all per­sons, with or with­out dis­abil­i­ties, chil­dren and adults, and should include cis­gen­der, trans­gen­der, non-binary, queer and inter­sex peo­ple.” (para­graph 88)

2022 Report of the Independent Expert on SOGI: Practices of Exclusion

• “There is also strong evi­dence of vio­lence and dis­crim­i­na­tion based on gen­der iden­tity because of nar­ra­tives of exclu­sion under states of excep­tion and in human­i­tar­ian and armed con­flict.” (para­graph 28)

• “Anti-gen­der nar­ra­tives cre­ate sig­nif­i­cant risk for the fur­ther­ance of the rights of women and can fos­ter vio­lence and dis­crim­i­na­tion based on sex­ual ori­en­ta­tion and gen­der iden­tity.” (para­graph 41)

• “Gen­der iden­tity and gen­der expres­sion pro­vide actual or per­ceived links to sex­ual ori­en­ta­tion that are often at the ori­gin of stigma and vio­lence, a con­clu­sion which many United Nations and regional human rights mech­a­nisms have also reached.” (para­graph 50)

2022 Report of the Independent Expert on SOGI: Law of Inclusion

• “Fur­ther, a broad under­stand­ing of gen­der allows for the sys­tem­atic assess­ment of dis­crim­i­na­tion impact­ing per­sons because of their real or per­ceived sex­ual ori­en­ta­tion, gen­der iden­tity and/or expres­sion, and the inter­pre­ta­tion issued by United Nations human rights treaty bod­ies indeed sug­gest this con­clu­sion as a con­se­quence of gen­der-based analy­sis.” (para­graph 30)

2016 General Comment No.22 on the Right to Sexual and Reproductive Health

• “Non-dis­crim­i­na­tion, in the con­text of the right to sex­ual and repro­duc­tive health, also encom­passes the right of all per­sons, includ­ing les­bian, gay, bisex­ual, trans­gen­der and inter­sex per­sons, to be fully respected for their sex­ual ori­en­ta­tion, gen­der iden­tity and inter­sex sta­tus. Crim­i­nal­iza­tion of sex between con­sent­ing adults of the same gen­der or the expres­sion of one’s gen­der iden­tity is a clear vio­la­tion of human rights. Like­wise, reg­u­la­tions requir­ing that les­bian, gay, bisex­ual trans­gen­der and inter­sex per­sons be treated as men­tal or psy­chi­atric patients, or requir­ing that they be “cured” by so-called “treat­ment”, are a clear vio­la­tion of their right to sex­ual and repro­duc­tive health. State par­ties also have an oblig­a­tion to com­bat homo­pho­bia and trans­pho­bia, which lead to dis­crim­i­na­tion, includ­ing vio­la­tion of the right to sex­ual and repro­duc­tive health.” (para­graph 23)

Evidence

2022 WHO Consolidated Guidelines on HIV, Viral Hepatitis and STI Prevention, Diagnosis, Treatment and Care for Key Populations

• “For trans and gen­der diverse peo­ple, the legal recog­ni­tion of pre­ferred gen­der and name may be impor­tant to reduce stigma, dis­crim­i­na­tion and igno­rance about gen­der vari­ance. Such recog­ni­tion by health ser­vices can sup­port bet­ter access, uptake and pro­vi­sion of HIV ser­vices. Addi­tion­ally, it is likely to improve trans and gen­der diverse peo­ple’s health and well­be­ing. How­ever, legal recog­ni­tion must be accom­pa­nied by train­ing, sen­si­ti­za­tion, edu­ca­tion and enforce­ment.” (p. 18)

• “High lev­els of stigma and dis­crim­i­na­tion against trans and gen­der diverse peo­ple in health care set­tings have been widely reported. Vio­lence and stigma and dis­crim­i­na­tion increase vul­ner­a­bil­ity to sub­stance use dis­or­ders, eat­ing dis­or­ders, depres­sion, sui­cide attempts, HIV and other sex­u­ally trans­mit­ted infec­tions, among oth­ers, and com­pro­mise trans and gen­der diverse peo­ple’s access and uti­liza­tion of health ser­vices.” (p. 54)