SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

Violence, especially sexual violence, is directed at gender non-conforming persons of all
kinds and ages. It is prevalent globally, and committed with impunity, including by the
authorities themselves, often but not only when gender non-conforming persons are in
detention or state care. Non-sexual and sexual violence produces a host of physical and
psychological injuries, as well as death. The harm of this violence is compounded when the
sexual assault is not treated in the law seriously or when fear of violence drives gender nonconforming
persons away from health services needed to treat the sequelae of violence.
The social rules of gender are codified and maintained in law, so that there are legal
consequences—often quite serious, through the criminal law -- in transgressing the rules
regulating gender 293 . These laws can in themselves be abusive of rights of privacy, equality
before the law, expression 294 and association, with effects on the health of the gendernonconforming
person. For example, laws which provide for the arrest and/or corporal
punishment for cross-dressing persons have direct effects on their health through the effects
of incarceration, and indirect effects through stigmatizing persons covered by these laws,
such that forms of violence- rape and assault are especially frequently documented—are
committed against them with impunity by state and non-state actors.
In addition, many gender rules seem to assume a connection between non-conforming gender
expression and non-conforming sexual behavior: criminal laws regulating dress for women
and men are often conflated with policies against homosexuality. Indeed, it is often wrongly
assumed that gender non-conformity—such as cross-dressing, or a desire to take on
masculine or feminine characteristics different from those culturally associated with one’s
assigned sex at birth—automatically indicates homosexual behavior.
States also regulate gender expression by permitting, mandating, controlling, or forbidding
surgeries and medical interventions for the purpose of modifying the bodies of persons to
align with specific expectations about gender.
Current rights claims include the freedom to access medical technologies and interventions
for bodily modification, to better reflect the person’s perceived or chosen gender, congruent
with prevailing standards of professional practice and patient consent. In addition, claims
include the ability to transition to a new gender without submitting to compulsory surgeries,
particularly sterilization, or other state-mandated procedures that infringe on rights of
privacy, and to reproduce and found a family. In addition, basic protections against
discrimination in the right to access mental and physical health services must apply.
293 The social rules of gender, called gender systems 293 that organize the assignments and valuations of persons
may vary between and within societies, and may also change historically. Nonetheless, they are implemented
through powerful rules, incentives, and socialization, operating through social institutions (church, family, state,
health and education, e.g.), which assign status, govern behaviour, and determine access to resources and social
legitimacy based on conformity to local gender norms. [see Gayle Rubin, Traffic in Women, cite to come]
294 While international human rights law has not fully responded to gender expression as a form of expression,
the basic reasoning articulated in the Siracusa Principles [See>>