UN May Open the Door to a Gender Extravaganza

By | July 5, 2019

NEW YORK, July 5 (C-Fam) The International Law Commission has agreed to abandon the traditional definition of gender enshrined in the 1998 Rome Statute of the International Criminal Court in a draft treaty on crimes against humanity.

The 1998 Rome Statute famously defined “gender” as referring to the “the two sexes, male and female, within the context of society.” The debate about the meaning of gender was so controversial when the treaty was negotiated states expressly excluded “any meaning different from the above.”

LGBT activists are now claiming a victory because the commission has decided to abandon that definition in a new treaty. But their celebration may be premature. The decision is not final and may not survive the General Assembly’s review of the work of the commission this Fall.

Last year the commission, a consultative body of the General Assembly, presented the first draft of the treaty to States for comments. At that time, it contained the male-female definition of the “gender” from the Rome Statute.

Last month, the commission tentatively agreed to scrap the definition of gender in the Rome Statute following pressure from LGBT lobby groups and their supporting governments. That decision should be confirmed as the commission wraps up its session in Geneva this month.

When it first started work on the treaty in 2015 the commission decided not to change any of the definitions from the Rome Statue. Now, however, the commission is saying that gender should be an exception because the meaning of gender has “evolved” in international human rights law.

The commission noted in particular how the prosecutor of the International Criminal Court already interprets the Rome Statute’s definition as covering not just women and men, but “sexual orientation” and “gender identity.”

Underlining the significance of redefining gender in international law, over 700 LGBT organizations lobbied the commission to jettison the binary definition of gender.

By contrast, a mere 33 countries submitted comments on the first draft of the commission. Nineteen of those countries asked the commission to change the definition of gender. Several UN agencies also lobbied the commission for this change, including the Office of the High Commissioner for Human Rights.

The General Assembly will review the work of the International Commission in the Fall and decide if to use the commission’s work as the basis for negotiations between States on a new treaty on crimes against humanity.

That decision will be a thorny one. Over 50 UN member states have been independently working on a parallel treaty on crimes against humanity. And it is further complicated by the opposition of roughly half the General Assembly to making “sexual orientation” and “gender identity” categories of non-discrimination under international law.

Roughly half of the General Assembly maintains that international human rights law protects all individuals equally as men and women, not on the basis of subjective categories of gender identity and sexual preference.

Moreover, the decision of the UN General Assembly at the 4thWorld Conference on Women in Beijing in 1995, which is currently still valid, was that gender should only be understood according to its ordinary usage.