Queering Women’s Rights: Re-Examining CEDAW by Margaret Murphy March 2021
Printed in Human Rights Pulse
Since its adoption in 1979, The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), has been lauded for its advancement of women’s rights in international law. However, this treaty must be re-examined and revised to be more inclusive. CEDAW reinforces a strict sex/gender binary of man and woman and excludes the narratives of those who fall outside of this cis-heteronormative worldview. International human rights law could benefit from drawing on queer feminist theories to better recognize the ways in which patriarchy and gender hierarchies are entrenched in systems of power, including legal systems. CEDAW’s language surrounding gender is outdated and reinforces gender stereotypes. By “queering” CEDAW, we can better understand the negative effects of gender in all individuals’ lives, which will further bolster women’s rights. Might it be time to reevaluate the language of CEDAW and adapt it to better suit our times?
Queer and feminist legal theorists have been discussing this topic for some time. One scholar, Darren Rosenblum, writes “while the continued need for international protection for women’s rights is patent, ‘women’ cannot be the beginning, middle and end of the story on international sex discrimination law”. It is worth considering how all gender identities are impacted by socially constructed hierarchies and stereotypes that are embedded in institutions. Dianne Otto also asks “whether the recognition of gendered harms suffered by everyone because of their gender identity, including men, women, trans and other genders, would help to shift the harmful dualistic gender stereotypes that continue to reside in the idea of the universal human being”. I believe the answer to this question is yes—that addressing gendered harms broadly will ultimately strengthen protections of women’s rights in international law.
CEDAW AS PERPETUATING CIS-HETERONORMATIVITY
CEDAW has been criticized for its cis-heteronormative perspective on gender and sexuality, and that it lacks a full recognition of the experiences of lesbian, bisexual and trans-women, as well as those who fall outside of traditional gender identities. Queer human rights advocates have highlighted some of the heteronormative assumptions about the sexuality of women in CEDAW. For example, Article 5(b) notes that states should “ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children”. Furthermore, similar assumptions are made in Article 16 in relation to the elimination of “discrimination against women in all matters relating to marriage and family relations”. These sections of the Convention reinforce heteronormative relationships by assuming the norm is a relationship between a man and woman. This does not consider same-sex relationships or relationships between individuals who may fall outside of the identities of man and woman.
Women’s rights under international law have also been critiqued for reinforcing a strict sex/gender dichotomy of male and female, man and woman, and for failing to recognize the fluidity of gender. Otto critiques CEDAW for its rigidity of gender categories, explaining that CEDAW prohibits sex discrimination against one gender – women. Moreover, Otto explains that “men are the only other gender [identity] recognised in CEDAW, and they primarily serve as the comparator against which women’s (in)equality is to be measured”. By only featuring two genders in CEDAW, it ultimately marginalizes those who fall outside of this binary.
RE-IMAGINING CEDAW: FUTURE POSSIBILITIES
As the primary international treaty on sex/gender discrimination, CEDAW must be rethought. Rosenblum notes that “CEDAW may require amendment to incorporate broader definitions or a Protocol to respond to its shortcomings”. An amendment or Protocol that recognizes the harmful impacts of gender hierarchies on all genders would be useful in protecting individuals who have largely been excluded from the conversation on “gender” as it is often misunderstood to mean “women”. This is also highlighted in the use of gender mainstreaming, in which “gender” is often conflated with “women”.
By recognizing gendered harms broadly, CEDAW could additionally strengthen women’s rights. Rosenblum argues that CEDAW’s shift away from the language of “sex” to “man” and “woman” actually limits the inclusivity of the Convention. Rosenblum argues that the more universal language of “sex” would be more inclusive, as currently interpreted it includes “people of all sexes— ‘men,’ ‘women,’ transgender, intersex, and other differently sexed and gendered people”. The dichotomy of man and woman lacks a holistic view of sex/gender as it is recognized by many today.
I do not wish to discount the discrimination that women face. Rather, I argue that to further protect women’s rights, we must understand how gender impacts all individuals. Women’s rights should continue to be recognized under international law, but it should also better recognize the role of gender hierarchies in the broader societal context. By drawing on feminist and queer theories, international human rights law can serve to bolster women’s rights as well as the rights of people with other gender identities. Sex/gender binaries serve to restrict our understandings of gender as fluid and these binaries must be removed from international human rights law.
CEDAW, although an important advancement for women’s rights, unfortunately sets us back in our understanding of gender fluidity. I agree with Rosenblum that it is time for an amendment or Protocol that addresses these oversights. However, the question remains: how realistic is this proposal? Certain states refuse to recognize the rights of the LGBTQ community and/or continue to persecute LGBTQ people. In progressive countries, even amongst certain “feminist” groups there are disputes as to whether trans and non-binary individuals should be included in their activism. This exclusionary rhetoric and persecution make it difficult to imagine a more inclusive CEDAW. However, it is important that this conversation continues, and queer feminist perspectives shine a light on the need for greater inclusivity.