Gender and Human Rights ELGAR STUDIES IN HUMAN RIGHTS Editorial Board: Thomas Buergenthal, The George Washington University, USA, Stephanie Farrior, Hunter College Public Policy Institute, USA, David Kinley, University of Sydney, Australia, Sarah Joseph, Griffith University, Australia, Balakrishnan Rajagopal, Massachusetts Institute of Technology, USA, Margot E. Salomon, London School of Economics, UK, Penelope Simons, University of Ottawa, Canada, David Weissbrodt, University of Minnesota, USA and Tom Zwart, Utrecht University, the Netherlands Discourse on human rights has grown ever more visible and essential, with human rights principles being discussed and scrutinized on both the international and national stage. This series brings together high-quality works of scholarship in the field of human rights, primarily in law, but particularly those with a critical or analytical edge, or those taking innovative and interdisciplinary approaches. Books in the series also address concerns at the intersection of human rights and other fields such as trade, the environment, international investment and religion, thus contributing to the depth and breadth of scholarship so vital to understanding the complicated matters at stake. Titles in the series include: The Legal Protection of Refugees with Disabilities Forgotten and Invisible? Mary Crock, Laura Smith-Khan, Ron McCallum and Ben Saul Contracting Human Rights Crisis, Accountability, and Opportunity Edited by Alison Brysk and Michael Stohl Using Human Rights to Counter Terrorism Edited by Manfred Nowak and Anne Charbord Human Rights and Islam An Introduction to Key Debates between Islamic Law and International Human Rights Law Abdullah Saeed The Social Rights Jurisprudence in the Inter-American Court of Human Rights Shadow and Light in International Human Rights Isaac de Paz González Contesting Human Rights Norms, Institutions and Practice Edited by Alison Brysk and Michael Stohl Behind the Veil A Critical Analysis of European Veiling Laws Neville Cox Gender and Human Rights Expanding Concepts Ekaterina Yahyaoui Krivenko Gender and Human Rights Expanding Concepts Ekaterina Yahyaoui Krivenko Senior Lecturer, Irish Centre for Human Rights, National University of Ireland Galway, Ireland ELGAR STUDIES IN HUMAN RIGHTS Cheltenham, UK • Northampton, MA, USA © Ekaterina Yahyaoui Krivenko 2020 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2020948602 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781800372856 ISBN 978 1 80037 284 9 (cased) ISBN 978 1 80037 285 6 (eBook) 2 0 To my husband, Yahyaoui M.B.S., for his constant support and patience Contents 1 Introduction 1 2 Gender and its complexities 5 3 Human rights and gender: the first stage 21 4 Feminist approaches, gay and lesbian studies, queer theory: their engagement with gender and human rights 44 5 Human rights and gender: the second stage 66 6 Successes and challenges: right to be free from violence 87 7 Successes and challenges: culture and human rights 101 8 Successes and challenges: family and human rights 120 9 General conclusions 140 Index 147 vii 1. Introduction CONCEPTUAL AND METHODOLOGICAL REMARKS This book is not about women and not about gender as a social corollary of sex. The book aims to disrupt the traditional association of gender with women and sex with biological binary. The book also rejects the traditional separation of sex as biological from gender as social. Addressed to all whose main focus is on human rights the book aims to disrupt these traditional tropes about gender prevalent in human rights law and demonstrate what hinders and what facili- tates the expansion of the concept of gender in international human rights law beyond the familiar tropes. In this regard some difficult terminological choices had to be made. Given that the term ‘gender’ in international human rights law is so strongly associated with women, there was some hesitation in maintain- ing this term in the title of the book and as the main reference term. However, against the background of gender’s far more complex deployment in broader social sciences and philosophy the decision was made for the maintenance of the term. The book focuses on disruption of human rights law’s utilization of the concept of gender and demonstrates how restrictive is the meaning attrib- uted to the concept of gender in human rights law. Thus, as further explained in subsequent chapters, in this book gender is utilized as an umbrella term to denote diversity of human bodies and human experiences related to sex and sexuality. Within certain contexts and chapters occasionally the terminology specific to the context is used, such as sexual orientation and gender identity, or discrimination based on sex. However, as clarified further within relevant chapters, this is dictated by particular contexts. This book is an exploration of the way international human rights law inter- acts with the concept of gender over years. Within this book the interaction is conceived primarily as an interaction between concepts. The concept of gender is a very dynamic concept which acquires different meanings depending on contexts but also which evolved significantly since its emergence in the mid-twentieth century. International human rights law equally experienced significant conceptual developments over years as it expanded a range of rights which count as human rights. The book aims to understand what conceptual developments within international human rights law facilitate its acceptance of a broad understanding of gender and what, to the contrary, lead to a shrinking 1