Latin American Feminists, Gender, and the Binary System of Human Rights Protection

On March 26, 2021, the Inter-American Court of Human Rights found Honduras responsible for the killing of Vicky Hernández, a trans woman and human rights defender.¹ The Vicky Hernández et al. v. Honduras judgment is the first in which an international court has protected a trans woman by applying a human rights treaty that protects women. It thus provides an opportunity to analyze the impact of feminist ideas on the system of human rights protection at the regional level, with implications for international law more generally. In this essay, I defend the Inter-American Court's majority decision against the dissenting opinions, by arguing that the political subject of human rights is dynamic and emergent and, therefore, positive law is often one step behind in the struggles for recognition. For this reason, we need interpretations of rights that are inclusive, that evolve, and that push for the destabilization of law as binary, allowing the emergence of a more egalitarian legal system that recognizes intersectionality.

The decision in the case of Vicky Hernández takes a step in this direction. The majority of the judges on the Inter-American Court maintained that, in order to activate the instruments of enhanced protection—such as the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (hereinafter, Convention of Belém do Pará)²—the category of “women” is not bound to particular genitalia.³ However, there were two dissenting opinions that insisted on not confusing the concept of “gender” with the concept of “sex.” This minority view, which a few decades ago was only held by conservatives,⁴ has now installed itself within feminism, splitting feminism into two irreconcilable positions that are reflected in the Court's judgment.

On one side, there are trans-exclusionary feminists (self-identified as “radical”) who believe it is necessary to distinguish biological women by their sex from any other gender. Only in this way can women be recognized as protected subjects of legal regulations that foreground sex difference in order to achieve material equality, such as women's rights, affirmative action measures, and segregation by sex in sports, bathrooms, and prisons. For this group, the analytical category of “gender” helps us understand the social, cultural, legal, and political structures of oppression that compel certain roles or behaviors of persons by function of their sex. But gender is not understood as connected to individual expression of identity. Thus, a specific protection system cannot be rooted in gender identity, which is changeable and subject to the choice or disposition of the individual, and therefore lacks a specific subject and threatens to dissolve existing mechanisms of women's protection.⁵

On the other side, there are inclusive feminists and transfeminists, who share a conception of sex as a dynamic, historical, non-binary category. They advocate for an understanding of the political subject of feminism in relational terms within a social hierarchy, not in biological or inherent terms. They also make visible the material reality of intersex persons, who historically have been ignored, pathologized, and subjected to processes of “normalization” to fit into an artificially binary conception of sex.⁶ For this group, the term “gender” not only refers to the social construction through which sexed bodies are systematically disciplined and organized, but also signifies the manifestation of identity and individual expression.⁷ The Inter-American Court's judgment in Vicky Hernández subscribes to this view.

The Vicky Hernández Decision ⁸

The Inter-American Court ruled against Honduras for the killing of Vicky Hernández in the context of intensified violence against LGBTQIA+ persons, which followed the coup d’état on June 28, 2009. The context may suggest Hernández was unusually vulnerable because of coup-related violence, but LGBTQIA+ persons generally suffer from systematic violence in the region.⁹

The Court did not categorize the case as “transfemicide,”¹⁰ but as homicide on account of gender and/or due to the victim's expression of her gender identity,¹¹ and applied the Convention of Belém do Pará to find against Honduras. According to the Court, when the Convention refers to “violence against women based on their gender,” it implies a system of patriarchal domination rooted deeply in gender stereotypes that includes the violence experienced by persons who defy gender norms, such as trans women.¹² Article 9 of the Convention urges states to take special account of “the vulnerability of women to violence by reason of, among others, their race or ethnic background or their status as migrants, refugees or displaced persons.” But the Court held that this list of factors is not numerus clausus and that gender identity may contribute, through intersectionality, to the vulnerability of women who suffer gender-based violence.¹³ This intersectional approach responds to feminist criticism of the way courts have interpreted anti-discrimination law.¹⁴ The critique argues that protected categories, such as gender or race, are applied in a way that protects only the dominant members within the protected group, making invisible the experiences of the most vulnerable within the group. By contrast, intersectional approaches foreground the experience of the most marginalized within the protected group—in this case, trans women—and thereby ensures the protection of everyone within the group.

Judge Elizabeth Odio Benito dissented. In her view, the Convention of Belém do Pará does not apply, and the Court incorrectly mixes the concepts of sex (biological)¹⁵ and gender (social and hierarchical construction), equating sex with gender identity,¹⁶ and, as a result, erasing “feminine sex with all its biological properties, mixing everything up in a single subjective and self-proclaimed category.”¹⁷ Nevertheless, she continues, feminism as a political theory and social movement has as its goal the eradication of inequality between men and women in all social structures. Thus, the “central issue of feminism (and, in this case, the violence against women due to being women) is women …”¹⁸ If, she concludes, we substitute the subject of feminism for “a strange and confused variable of subjective identities,” decades of struggle and feminist theory would be negatively impacted: “not only would feminism disappear, but also the theory of human rights that is based on objective and scientific categories, rather than on feelings or self-perceptions.”¹⁹

The judge, as well as others who adhere to this position, did not deny that LGBTQIA+ persons suffer discrimination and violence. But, in her view, said violence has a different cause and thus must be protected in a different way, not through the mechanisms that focus on biological women.²⁰ However, as the next section shows, the concern for the “erasure of women” that Judge Odio Benito expresses not only lacks empirical support, but is premised on a conservative and reifying misunderstanding of both the “political subject” and the systems of protection of rights created by political mobilization.

Feminist Interventions in International Human Rights Law

Toward the end of the 1960s, feminist movements adopted the concept of “gender” to refer to the social relations of power based on the differences which distinguish the sexes. Gender, as an analytical category, served to argue that many of the differences between men and women were produced socially, and thus, could change.²¹ The goal was to name the ideological system at work, placing people within cultural and social hierarchy. This system, called “patriarchy,” overvalued the masculine, associating power with masculinity, and considered everything related to (or constructed as) the feminine to be inferior and subordinated.²² As a social movement, feminism struggles to evince and dismantle this system, which claims to be natural.

However, the question of who embodies the political subject of feminism soon became controversial. From the attempt of feminist methodology to reclaim “the” experience of women to prove how such experience has been marginalized, to identifying the “shared problems” of women that need to be addressed, to the call for mechanisms for women's “representation” in political systems, among others, the problem of identifying who this “woman” is became evident. In short, the criticisms of essentialism—the idea that there is something that makes us women that is permanent, linked to anatomy, and which can be isolated and described independently of other realities of experience—have called into question the political subject of feminism, enriching and complicating the debate.²³

To insist, as Odio Benito's dissent does, on a static definition of woman as “female” serves to maintain a binary system of gender that oppresses those who defy it.²⁴ Odio Benito's interpretation does not seek to understand in structural terms the situation of gender-based oppression, but instead to attach intrinsic characteristics to some persons and from there to infer legal results.²⁵ This line of reasoning leads to the absurd outcome that choices (such as religion or ideas) self-identification (such as indigeneity) or conditions (such as poverty or migration) would not merit protection by the human rights system, even when they put persons in vulnerable situations, because they do not reflect immutable or “objective and scientific” characteristics.²⁶

By contrast, a progressive interpretation of rights must be situated, open, and possibilistic,²⁷ and the categories on which it is based must be “explicitly tentative, relational, and unstable.”²⁸ One must understand how social hierarchies operate in different contexts and historical moments in order to, on the one hand, recognize persons who suffer oppression and, on the other, try to dismantle the body of prejudices, stereotypes, and violence which work to maintain said system of domination.²⁹ In this sense, cis (biological) and trans women both suffer patriarchal gender-based violence.³⁰ And although the manifestations of violence are not identical (not even among cis women), the system which produces them is the same—and it is that system against which international human rights law instruments fight.

In its decision, the Inter-American Court of Human Rights undertook a progressive interpretation by relying on the Convention of Belém do Pará to identify the type of violence and advance a comprehensive response for those who are subject to this violence, while also recognizing intersectionality and moving beyond a binary conception of gender.³¹

Conclusion

The significance of the Vicky Hernández decision is that it demonstrates how to overcome the limits presented by the normative systems of human rights protection. When not interpreted in a progressive manner, systems of rights protection can hinder the emancipatory claims of those who do not perfectly “fit” within their assumptions, even though they suffer the vulnerabilities foreseen by such systems. The judgment represents a major step forward for inter-American human rights law, and also for the understanding of law itself, in both feminist and transformative terms.

As Harris highlights, although essentialism is easy—because essentialism defines dominant culture, represents “emotional security” for those who embrace it and, above all, offers women “the opportunity to play all-too-familiar power games both among themselves and with men”—it comes at the expense of the possibility of social transformation.³² By contrast, a progressive feminist agenda must escape from those “safe places,” be inclusive, and advance transformative interpretations that ultimately destabilize the entire legal system rooted in the artificial sex/gender binary, which helps to maintain and reproduce gender-based violence in all its dimensions.