16 Days Activism Against GBV Series| The Future of Transgender Liberation is International Law

International law has an incredible potential to be the vehicle through which global transgender liberation is realized. In this reflective blog, Paxton McCausland  argues that international law is already being used to improve the quality of life for transgender peoples across the world.  Sadly however, this dream will never be fully accomplished with the continuation of horrific impunity.

As an American grassroots organizer for transgender liberation, I never envisioned myself becoming interested in or even inspired by law. During my undergraduate education, in which I studied Political Science, I took a Constitutional Law class and was deflated, disappointed and bored. American constitutional law has very few safeguards for transgender individuals and the Supreme Court, in its present composition at least, is generally hopeless. Having completed several unpaid internships with politicians who used my work without crediting me, I began to understand that American politics were not for me. My despondent view of the law changed when I began to learn about international law in graduate school.

It turns out that international law has incredible potential to realize and spread transgender liberation. While there are several forms of international law, all with their own guidelines, concepts and modalities, in this blog post I will use a broad definition, meaning that the points I make do not align with one specific form of international law. Additionally, I must establish that I am not an international lawyer, but rather merely a liberation nerd, endlessly excited by the potential of international law. That being said, international law not only contains an actual definition of gender, it also contains radical promotion of self-determination, a concept I had never heard of within the domestic law of my own nation. Both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, major tenants within the international human rights law, begin with the phrase ‘All peoples have the right of self-determination’. Self-determination as transgender liberation, as I have understood it in my background as a trans organizer, advocates for an individual to understand and decide for themselves who they are and what is best for them. In theory, the ultimate expression of transgender liberation is the truest expression of self-determination. This incredible tool for international trans liberation, however, cannot reach its full potential while blatant impunity against war crimes and continuous double standards for the worst and most powerful offenders continues. In a very obvious example, the United States has been protecting Israel from punishment, as well as allowing the country’s many war crimes and crimes against humanity, such as the blatant encouragement of illegal Israeli settlements, to continue with impunity for decades via the UNSC veto power and other such methods. The longer this impunity continues, the weaker international law becomes. I would even go so far as to say that the future of international transgender liberation rests on the protection and sanctity of international law, and therefore the end of such impunity.

International law has already begun to benefit and protect transgender, gender-non-conforming, nonbinary and Indigenous third gender peoples throughout the world. Despite a somewhat problematic definition of gender within the Rome Statute, which confuses sex and gender, the International Criminal Court established the understanding that gender is socially constructed as an international law standard through the Office of the Prosecutor’s Policy on the Crime of Gender Persecution. For more information on the debate regarding the definition of gender in international law, I encourage readers to engage with Alexandra Lily Kather and Juliana Santos de Carvalho’s brilliant article on the subject. As mentioned above, international law’s standard of the concept and promotion of self-determination is extremely helpful in establishing transgender people’s right to gender-affirming care and ability to self-identify. Many scholars, such as B. Camminga, advocate for trans folk’s right to legal gender recognition (LGR), or accurate depiction of an individual’s gender identity on legal documents, on the basis of self-determination alone. In arguing for LGR on this basis, requirements for trans people to ‘prove’ their gender identity (refer to the Camminga article linked above), through costly, cumbersome, invasive and harmful medical diagnosis or bottom surgery, a form of reproductive violence and forced sterilization, are rendered unnecessary. In the unfortunate situation in which a trans person has a well-founded fear of persecution based on their membership to a particular social group – the trans community – international law grants them, via the 1951 Refugee Convention, refugee status and allows them to apply for asylum. The international law principle of non-refoulement states that it is prohibited for these individuals to be sent back to their countries of origin if their return would most likely result in a serious threat to their life or freedom. These are a few of the ways international law is already working toward transgender liberation.

Given these standards of international law and the enormous potential of this type of law to realize transgender liberation, it is imperative that all roadblocks to its success be eliminated. We cannot tackle the toughest battles until the means by which the battles can be fought are working as they were intended to. Liberation builds on itself – at a macro and micro level, we are all fighting the same battle for liberation. As such, protecting international law not only ensures the protection and safety of trans and gender-non-conforming individuals, today and tomorrow, but it additionally ensures protections of rights for everyone. By battling impunity, we are allowing trans people, Palestinians, Sudanese, Royhinga, Yadzidi and everyone to live full and dignified lives everywhere.

They say the future of international law is domestic law. Given this adage, it is my greatest hope that one day I can see the laws in my own country reflect those that protect my people through international law. At that point, with my ultimate life and career goal being international transgender liberation, I will be able to die happy. Protect international law. Protect the International Criminal Court. The liberation of transgender peoples and of all peoples depends on it.

Opinions expressed in Bliss posts reflect solely the views of the author of the post in question.

About the author:

Paxton McCausland (he/they) is an organizer and academic who began working toward gender justice as a grassroots organizer for transgender liberation. They were recently appointed as a board member for the Women’s Initiatives for Gender Justice and received a Master of International Affairs from the School of International and Public Affairs. Paxton currently resides in Pennsylvania.

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