On Friday 16th December Victor Madrigal-Borloz, the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, sent an extraordinary letter to the Scottish Government claiming that “legal recognition of gender identity” via self-identification is an “international human rights imperative”.
He has now been invited by the Scottish Parliament’s Equalities, Human Rights and Civil Justice Committee to address them (for a second time) this Monday, just two days before the final vote on the Bill. He comes waving an apparently big stick. He claims, again and again, in his letter that enacting legal-sex-change-by-self-determination is necessary as an:
“act of compliance with obligations incumbent upon the State under international human rights law”.
Back in June 2022, when Madrigal-Borloz spoke to the Committee he made a somewhat vaguer two-part claim that:
“certain requirements are recommended and dictated by international human rights law in relation to processes of legal recognition, including that processes should be accessible, fast and widely available, along with other requirements…”
He then elaborated on these “other requirements”, setting out the self-ID agenda: people should be allowed to change their legal sex, to man, woman, a multiplicity of other options, or no sex at all, without medical assessment, through a simple, free, confidential process of self-determination. He presented these demands as a “basic standard”, saying they were “allowed for” by the existing body of international human-rights law and that “each of those criteria had been examined by several bodies, including global bodies, many United Nations special procedures bodies, treaties bodies and European and inter-American regional human rights courts”.
This week’s letter makes a bigger claim: that the Scottish Government has an obligation under international human-rights law to enact self-ID.
This intervention in the Scottish self-ID debates throws a fresh bombshell into the debate in the last days before the final vote. Mr Madrigal-Borloz’s last-minute opinion disagrees with that of the Equality and Human Rights Commission, the UK’s statutory human rights regulator. The EHRC has consistently said that the existing legal framework is compliant with international human-rights law:
“The established legal concept of sex, together with the existing protections from gender reassignment discrimination for trans people and the ability for them to obtain legal recognition of their acquired gender, collectively provided the correct balanced legal framework that protects.”
- The EHRC should respond to Mr Madrigal-Borloz’s letter, and if they do not have enough time to fully consider his claim they should call for a delay in the vote.
- MSPs should not be confused by this last-minute flourish of international theatrics: there is no obligation on Scotland to enact a law allowing anyone to change their sex by self-ID.
We have undertaken a rapid review of Madrigal-Borloz’s claim of an international legal obligation to enact self-ID.
Does his claim add up?
Madrigal-Borloz sets out in detail the list of treaties and conventions, committees and special representatives’ reports that he relies on, landing finally with the Yogyakarta Principles. The Yogyakarta Principles are an activist document with no status in international law. But what about the rest of the official and impressive-sounding documents?
For his claim to be true, at least one of the other instruments he cites must satisfy both of these criteria:
- creates a legal obligation on the Scottish Government
- requires the passing of a legal self-ID law.
As the table below shows, none of them do. Most are not binding and many do not concern legal sex change at all, but discrimination against transgender or transexual people (as already covered by the protected characteristic of Gender Reassignment in the Equality Act 2010).
|Body/instrument||Statement||Binding?||About legal self ID?|
|Universal Declaration on Human Rights||Article 6 states “everyone has the right to recognition everywhere as a person before the law”||✔||✘|
|CEDAW Committee General Comment No. 28 (2010)||Emphasised that States must recognise, prohibit, and adopt policies and programmes to eliminate intersectional forms of discrimination, including, explicitly, on the basis of gender identity.||✘||✘|
|CEDAW committee||Emphasised that the CEDAW applies to both gender and sex-based discrimination||✘||✘|
|The UN Committee on Economic, Social, and Cultural Rights General Comment No. 20 (2009) on non-discrimination||Observed that “gender identity is recognized as among the prohibited grounds of discrimination for example, persons who are transgender, transsexual or intersex often face serious human rights violations, such as harassment in schools or in the workplace”||✘||✘|
|The UN Human Rights Committee, UN Committee on the Rights of the Child and UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health||have expressed concern about human rights violations based on that trait, making in some cases explicit reference to gender expression; all have called on States to address such violations||✘||✘|
|The UN Committee on the Elimination of Discrimination against Women||affirms that “discrimination against women based on sex and/or gender is often inextricably linked with and compounded by other factors that affect women, such as […] being lesbian, bisexual or transgender”||✘||✘|
|UN Committee on Economic, Social and Cultural Rights||established that “the notion of the prohibited ground ‘sex’ has evolved considerably to cover not only physiological characteristics but also the social construction of gender stereotypes”||✘||✘|
|UN Human Rights Committee||having analysed a State’s failure to allow change of gender markers on official documents, the committee concluded that it was a form of discrimination because “the Government is failing to afford the author, and similarly situated individuals, equal protection under the law”||✘||✘|
|UN Committee on the Rights of Persons with Disabilities||uses the phrase “all genders”, suggesting an understanding of gender that goes beyond gender binary||✘||✘|
|UN Committee Against Torture||recognises that States must ensure that “their laws are in practice applied to all persons, regardless of [.] gender, sexual orientation, transgender identity”||✘||✘|
|UN Working Group on Discrimination against Women and Girl||has highlighted the dangers of ignoring gender identity and diversity: observed that women who do not conform to gender stereotypes, including some who may identify as lesbians, bisexual and trans women, are particularly vulnerable to discrimination, violence and criminalisation and has noted: “in the 1990s queer theory also started using the term gender, challenging (what it perceived as) the binary understanding of gender, sex/gender dichotomy, and the heteronormative assumptions of some feminist approaches.||✘||✘|
|The mandate of the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity||has already identified among the circumstances that can unduly restrict freedom the “male/female binary system on the basis of the sex assigned at birth [and the idea that] persons fall neatly and exclusively into that system”||✘||✘|
|UN Human Rights Committee||has adopted gender-based frameworks in finding that the right to life “must be respected and ensured without distinction of any kind”, expressly forbidding distinctions based on gender identity; acknowledging “multiple and intersectional forms of discrimination”||✘||✘|
|UN Human Rights Council Resolutions 32/2, 41/18 and 50/10||strongly deplore acts of violence and discrimination committed against individuals because of their gender identity||✘||✘|
|Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention)||thoroughly integrates gender theory, distinguishes between sex and gender, and defines gender as “the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men”||✘||✘|
|The Istanbul Convention||recognises the harms of gender roles and stereotypes and acknowledges that “gender-based violence” is a mechanism “by which women are forced into a subordinate position compared with men||✔||✘|
|The Istanbul Convention||includes antidiscrimination obligations that require States to implement the provisions of the treaty without discrimination on any ground, including sex, gender, sexual orientation, or gender identity||✔||✘|
|Council of Europe||established a thematic unit covering, among others, gender-identity concerns||✘||✘|
|Commissioner for Human Rights of the Council of Europe||found that increasingly harsh political and public discourse “fuelled by ignorance of the issues around gender diversity” in relation to trans persons is on the rise in the UK and that narratives “that frame trans people as a threat to others are particularly egregious examples [… of] deeply discriminatory stereotypes of trans and gender diverse persons based on ideas of predatory determinism”||✘||✘|
|EU Directive 2006/54/EC||states that “the scope of the principle of equal treatment for men and women cannot be confined to the prohibition of discrimination based on the fact that a person is of one or other sex” and that “it also applies to discrimination arising from the gender reassignment of a person”||✘||✘|
|Organization of American States (“OAS”) of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (“Convention of Belém do Pará”)||a series of yearly resolutions since 2008 recognise violence and discrimination based on gender identity, and the Inter-American Commission and Court of Human Rights have repeatedly held that the core state obligation of non-discrimination set forth in Article 1.1 of the American Convention on Human Rights covers the ground of gender identity, and that the Convention of Belém do Pará applies to transwomen on the basis of self-identification||✘||✘|
|In the African System, the 2014 Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity (Resolution 275) of the African Commission on Human and Peoples’ Rights||is based on the premise that gender identity is a ground for protection from violence and other human rights violations including discrimination, under the African Charter||✘||✘|
|The African Commission on Human and Peoples’ Rights||has incorporated reference to sexual orientation and gender identity in several interpretative instruments of the African Charter||✘||✘|
|Yogyakarta Principles||“describe the processes of recognition of gender, and gender identity and expression”||✘||✔|
What about the case law?
Madrigal-Borloz states that the European Court of Human Rights “has incorporated gender identity in its jurisprudence since 1992, first in connection with privacy and family life, and notably in 2003 through the recognition of gender identity as one of the most intimate aspects of a person’s private life”.
Here he refers to two cases:
- B v France  — concerned the ability to change the birth certificate of a post-operative transsexual.
- Van Kück v Germany  — concerned refusal to order a private insurance company to reimburse costs of gender reassignment surgery.
Neither of these cases is relevant to his claim of a legal obligation on Scotland to go beyond what is already in the GRA 2004.
He also says: “The European Court of Justice has repeatedly held that the European Union framework against sex discrimination protects persons who have sought or are planning to seek legal recognition of their gender identity in areas such as employment, access to employment-related social benefits (widower’s insurance) and pensions.” None of this requires legal self-ID, and all of it is covered already in the Equality Act.
A final piece of case law he refers to is Schlumpf v Switzerland , which he describes as “a case in which a waiting period for processes connected to legal recognition of gender identity were set without regard to the applicant’s age”. In fact, it concerned a health insurer’s refusal to pay the costs of “sex-change” surgery.
In footnote 46, Madrigal-Borloz admits that when he says that “legal obligation” he means nothing of the sort, but is trying to stretch the term to include the “cherished” Yogyakarta Principles.
“In my opinion, recognition of an instrument by the United Nations is not a matter of a binary classification of binding/not binding on the sole basis of whether the instrument is a treaty. [… ] The Yogyakarta Principles are justly cherished around the world as a major achievement of activism in the field of sexual orientation and gender identity. As proven by the reference made to them by global and regional bodies, they hold a singular value as a doctrinal source that has done great service to the furtherance of the human rights of lesbian, gay, bisexual, trans, non-binary and other gender diverse persons.“
The EHRC should step in to make sure that Scottish law-makers are not misled about their obligations under international human-rights law.