Reimagining Gender

The principle of equality and the prohibition of discrimination on grounds of sexual orientation are enshrined in the EU Treaties, a strong baseline is also laid down in secondary EU legislation. However, the impact of the respective provisions is constrained in two ways: by challenges to their enforcement and, regarding the secondary EU law, by the limited scope of non-discrimination rules. This paper seeks to take stock of the EU non-discrimination law with respect to sexual minority rights as well as enforcement mechanisms applied by the EU to safeguard its implementation by the Member States. To that end we analyse the case of Poland where discriminating local government resolutions on “LGBT-ideology free zones“ or even “ LGBT-free zones“ triggered tangible countermeasures by the EU, including financial sanctions. The paper identifies systemic weaknesses in existing enforcement mechanisms and concludes by pointing to regulatory policy which could address them.

In 2020, the Czech Government banned fathers' presence at childbirth to contain the spread of COVID-19. The measure has sparked a media debate among legal experts and the public about human rights and women's rights, highlighting the proportionality test as an objective expert tool to review the measure's proportionality. Through an interpretive analysis of the debate, our paper identifies meanings and narratives to show how emotions and women's rights are perceived by legal professionals when assessing the proportionality test. The paper argues that by excluding emotions from legally relevant argumentation, legal expertise questions the potential of the proportionality test to reach a legitimate conclusion as the interference with fundamental rights is related to emotional aspects of human integrity, autonomy, dignity, and other individual freedoms.

For several years, legal orders tend to adapt their gender registration system to gender nonconformity. Some states, such as Belgium or Argentina, are progressively recognizing non-binary gender identities to promote the right to self-identification. However, some of them stick to a registration system strictly limited to sexual binarism. Thus, despite the impulse of human rights law in favour of a more inclusive law for sexual and gender minorities, few states strongly refuse to adapt their legal system. What are the reasons brought by judges to refuse the legal recognition of a neutral or non-gendered identity? How this question differs from the recognition of sex change procedures for trans persons? Should the human rights bodies, such as the European Court of Human Rights, go further and oblige the recognition of non-binary identities? This paper will therefore analyze the contrasted evolution regarding non-binary identities throughout several jurisdictions.

The talk maps the global rise of ‘gender self-identification, commonly referred to as ‘gender self-determination. These are laws and policies allowing for self-identification of gender identity. The talk provides a comparative review of laws and policies from over a hundred jurisdictions worldwide. While gender self-determination allows for greater access tolife chances for transgender people, as it removes grave breach to bodily autonomy, it also formulates ‘gender identity‘ as a private entity, separated from publicly assigned sex. Thus, gender self-determination inevitably redraws the public/private line along the contours of the transgender body, suggesting a need to examine the apparatus of assigning sex at birth and its pivotal role in exclusions of trans people and gender inequality more broadly. Addressing the distribution of life prospects along gender lines requires going back to the category of sex and critically rethinking its fundamental differentiating structures.