This article is part of our coverage of the United Nations' Commission on the Status of Women, New York, March 2017

Hijra gather in Mazar near Kolkata, India. Credit: Pacific Press / PA Images

In February, transgender people in Ecuador were able to vote for the first time according to their chosen gender. Also in February, two transwomen of color were killed in New Orleans within 48 hours. While tremendous strides have been made in trans, intersex and gender variant rights in recent years, from de-medicalization of standards to legal recognition of non-binary gender identities, advocates recognize considerable challenges remain ahead.

In July 2016, UN Women welcomed the Human Rights Council’s appointment of an Independent Expert on violence and discrimination based on sexual orientation and gender identity, calling for “full support to the new mandate.” LBTI advocates hoped this would translate to these issues making their debut inclusion in the main program and in the language of the draft conclusion of this year’s session of the United Nations Commission on the Status of Women.

A missed opportunity

This, however, was not the case. LBTI are on the fringe of the UN Commission on the Status of Women once again. The UNCSW is arguably the biggest annual gathering of women in the world, and is taking place over two weeks this year in New York. Out of more than 240 side events hosted by member states, only two have or will focus on LBTI issues, and only five out of more than 400 NGO-hosted fringe events.

One of these side events was hosted by the Republic of Malta on the first day, Monday March 13th, entitled “Legal Reforms to Protect the Human Rights of Trans, Intersex and Gender Variant People”. During this event, Purna Sen, Policy Director for UN Women, spoke of UN Women’s commitment to addressing the violence and discrimination faced by trans, intersex and gender variant people. She said, “It is very clear that this is a priority for us [UN Women].” Sen went on to conclude that “intersex and trans and other folks who’ve really been denied visibility and the ability to be heard,” should be “particularly placed centre-stage” moving forward.

Yet this commitment has yet to be seen in the focus or language of the organization. The CSW missed a perfect opportunity to do just that this year, as the focus area of this session is the empowerment of indigenous women. Many indigenous groups around the world have traditions of gender variant identities: ninauposkitzipxpe, a third gender among Canada’s Blackfoot; lhamana, the two-spirit Zuni tradition in the Southwest of the United States; the five genders of the Bugi people of Sulawesi in Indonesia; and hijra, a third gender in South Asian cultures including India, Pakistan and Bangladesh. Individuals of these diverse genders have often filled a central and respected role in religious, ceremonial or communal practices, but many faced, and continue to face, stigmatization following colonization. Recognition and incorporation of trans, intersex and gender variant persons into the dialogue on indigenous rights would have been not only fitting but overdue.

The challenge of opposing member states

While many agreed that trans, intersex and gender variant issues must have greater attention in the CSW and more generally, these issues remain highly contested in UN debates as many member states deny international organizations the authority to address them. The appointment of the new independent expert was challenged four times in November and December; twice in the plenary session of the General Assembly, and once each in the UN Third Committee (Social, Humanitarian and Cultural) and UN Fifth Committee (Administrative and Budgetary).

Saudi Arabia, Russia, China and Morocco were among the 18 member states to oppose the original appointment, referring to it as “deeply divisive” and failing to “recognize cultural differences.” This is far from the first time these arguments have been lobbed in opposition to human rights measures: the push-pull between universal and culturally relative human rights regimes has been used in debates over female circumcision or genital mutilation, abortion and women’s rights more generally. These arguments find support in the fact that none of the nine core international human rights treaties explicitly mention sexual orientation.

Demonstration against homophobia in Russia, Berlin, August 2013. Credit: Florian Schuh / PA Images

The United Nations, however, can and has addressed these and similar issues in reports, guidelines and resolutions. “In the jurisprudence and in general comments and in concluding observations, UN Treaty bodies have repeatedly held that sexual orientation, gender identity and expression, and sex characteristics are prohibited grounds of discrimination under international law,” said UN Women’s Purna Sen. “The challenge is to ensure the principles are held and that they are made real in the lives of people who are denied their full humanity.”

Broadening our understanding

The focus, says Zhan Chiam, from the International Lesbian, Gay, Bisexual, Trans and Intersex Association, needs to be on legal gender recognition. It is this recognition that “allows a person to exist as a legal entity in society: it allows them to open a bank account, it allows them to go to school, it allows them to cross borders, it allows them to get married.”

The ultimate aim is to protect their rights as individuals: to bodily autonomy, self-determination, to privacy, to association, to marriage. Direct protections against surgical requirements for recognition, against the denial of or forced medical treatment, and against violence, discrimination and abuse are vital to this aim.

Helena Dalli, Minister for Social Dialogue, Consumer Affairs and Civil Liberties of the Republic of Malta called for future CSWs to “address the rights of trans, intersex and gender variant people more centrally in the main program.” But, as Dalli acknowledged, not even all feminists recognize the connection between women’s and trans, intersex and gender variant issues.

Micah Grzywnowicz, from The Swedish Federation for Lesbian, Gay, Bisexual, Transgender and Queer Rights, argues that the inclusion of trans, intersex and gender variant issues dovetails with the aims of the CSW and feminism more broadly. It demands that we “broaden the understanding of what gender means in general and how it all fits and how the system that we’re creating can actually serve everybody and not just the ones who fit,” said Grzywonowicz.

For Dalli, the causes are indistinguishable, the goals the same: “Trans, intersex, and gender variant people suffer because of patriarchy and gender stereotypes much like women do. Their fight for equality and women’s fight for equality are thus by their very nature the same fight.”

States such as Malta, Argentina, Germany and New Zealand are leading the way in protections for trans, intersex and gender variant rights, allowing for parents and individuals to choose third gender options on federal documents and IDs, and providing accessible name and gender marker change processes. Others, such as Denmark and India, are picking up the baton. As shown by the Core Group of seven Latin American countries – Argentina, Brazil, Chile, Colombia, Costa Rica, Mexico and Uruguay – and 41 others calling for the independent expert on issues of sexual orientation and gender identity, the balance is shifting. Trans and intersex rights may prove to be the human rights fight of our era.