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Exploring the Applicability and Limitations of International Human Rights Law to the Protection of Transgender Persons: a Case Study on Detention

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Exploring the Applicability and Limitations of International Human Rights Law to the Protection of Transgender Persons: a Case Study on Detention Exploring the applicability and limitations of international human rights law to the protection of transgender persons: a case study on detention Ekaterine (Eka) Iakobishvili A thesis submitted for the degree of Doctor of Philosophy Department of Law University of Essex Date of submission 3 October 2017 Year of award 2018 Declaration I certify that this thesis I have presented for examination for PhD degree of the University of Essex is solely my work other then where I have indicated that it is the work of others. The copyright of this thesis rests with the author. Quotation from it is permitted provided that full acknowledgement is made. This thesis may not be reproduced without prior written consent of the author. I warrant that this authorization does not, to the best of my belief, infringe the rights of any third party. This thesis is dedicated to the memory of: my cousin Tamro Asanishvili who was brutally tortured and murdered on 27 September 1990 in Georgia Acknowledgements My journey of completing the four years of study was not easy. It is truly only due to numerous generous and kind-hearted people I met in last five years that I have been able to accomplish this thesis. I will miss out many who supported me over last four years, though some shall be absolutely mentioned by name. Michael and Freda Murphy deserve my deepest gratitude for lending me their pension sum so I could pay first year tuition fee in 2013. I am also thankful for the International Education Centre of Georgia and OSF Global Supplementary Grant Program - Europe for their contributions to my second and third year tuition fees and parts of subsistence in 2014 and 2015. I owe a great deal of appreciation to both of my supervisors, Professor Lorna McGregor of Human Rights Centre and Roisin Ryan-Flood of the Centre for Intimate and Sexual Citizenship both the University of Essex, first, inviting me to work with them and second for guiding me through last fours years of work. To Daragh Murray for his practical advice on the structure of the thesis, but also the workings of the PhD project. I shall remain ever thankful to Mary Murphy who read the draft thesis and provided insightful and extremely helpful comments and to my friend Madeleine Grieve who kindly proof-edited the thesis and the references. To Boglarka Fedorko from ‘Transgender Europe’ who kindly advised me on the terminology and gave me insightful comments on the latest draft paper. Not forgetting my partner, Martin Butler, for correcting my English language tirelessly, particularly - “the” and “a” articles, so that my English writing could make sense, for providing all the necessary distractions and short breaks away, and simply for being there for me. Not least, to my parents, my heroes - Jemal and Tsiala Iakobishvili, who have instilled in me the basics of humanity and kindness that no university can ever teach. I thank you all for your support in making this project come into fruition. Summary of the thesis This thesis explores and analyses the applicability and limitations of human rights law as it applies to transgender persons. As such limitations are most evident in a strictly sex segregated spaces, the thesis proposes a case study on detention to illustrate potential conflict between the binary models of the sexes, gender fluidity and application of international human rights law to those with transgender or non-binary gender identity. For this, the thesis reviews international human rights law sources, queer theory literature and transgender and non-binary gender studies. This research examines the issues of transgender and non-binary identities and their recognition in law, including developments in international human rights law and the recognition of transgender identities in human rights instruments. The thesis considers issues such as underlying principles of human rights, and substantive rights applicable to transgender persons while surveying the national jurisprudences to assemble and fully examine the available models of transgender recognition in law. The case study on detention analyzes the lived experiences of transgender prisoners and their life stories. It examines the international standards on the treatment of transgender prisoners and their human rights. The scope and applicable framework of protection is also discussed, considering the tension between binary nature of prisons and transgender persons’ non-binary gender. Overall, this thesis initiates a discussion about the binary/non-binary dichotomy in the prison context and asks a series of questions as to how transgender and non-binary gender identities can be accommodated in the prison context. It concludes with a number of recommendations for a deeper understanding of sex/gender and prison dichotomy both in theory and practice. The thesis also offers practical recommendations to international human rights mechanisms to provide specific guidelines on the application of human rights law to transgender and other non-binary gender prisoners. Abbreviations and Acronyms L - Lesbian G - Gay B - Bisexual T - Transgender I - Intersex Q - Queer LGBTIQ – Lesbian, Gay, Bisexual, Transgender, Intersex, Queer SOGI – Sexual Orientation and Gender Identity UN – United Nations UNGA - United Nations General Assembly ECOSOC - UN Economic and Social Council OHCHR – Office of the High Commissioner for Human Rights HRC – Human Rights Council OAS- Organisation of American States OIC - Organization of the Islamic Conference CoE - Council of Europe UPR – Universal Periodic Review SP - Special Procedures SR – Special Rapporteurs UN Independent Expert on SOGI – The United Nations Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity HRCttee - Human Rights Committee CESCR - Committee on Economic, Social and Cultural Rights CEDAW – Committee on the Elimination of all Forms of Discrimination Against Women CRC Committee - CAT Committee SPT - Prevention of Torture NPM - National Preventive Mechanism ECtHR – European Court of Human Rights IACtHR - Inter-American Court of Human Rights African Court – African Court on Human and Peoples Rights ACHPR - African Commission on Human and Peoples’ Rights UDHR – Universal Declaration on Human Rights ICCPR – International Covenant on Civil and Political Rights ICESCR – International Covenant on Economic Social and Cultural Rights CAT – The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment OPCAT – Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ICEDAW - International Convention on the Elimination of all Forms of Discrimination Against Women CRC - Convention on the Rights of the Child ECHR – European Convention on Human Rights ACHR - Arab Charter on Human Rights Banjul Charter - African Charter on Human and Peoples’ Rights SMR – UN Standard Minimum Rules for the Treatment of Prisoners Bangkok Rules – UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders Luanda Guidelines - Guidelines on the Conditions of Arrest, Police Custody and Pre- Trial Detention in Africa Robben Island Guidelines - Robben Island Guidelines for the Prohibition and Prevention of Torture in Africa EPR - European Prison Rules NGOs - Non-governmental organization i TABLE OF CONTENTS INTRODUCTION 1 1. Transgender identities and law 7 2. Transgender rights and prisons 11 3. Terminology used in this thesis 14 4. Structure of the thesis 18 PART ONE CHAPTER I – TRANSGENDER AND NON-BINARY IDENTITIES 1. Introduction 23 2. Transsexualism and transgenderism as identitarian categories 26 2.1.The history of the “transsexualism” 27 2.2.The history of transgender identity 32 2.3. Emerging identities of non-binary gender 37 3. Post-structuralism: understanding transgender in the prism of queer theory 41 3.1. Gender performativity theory 45 3.2 Queer theory and feminism 49 3.3. Feminist theory and transgender 54 3.4. Queer theory and transgender studies 58 4. Transgender studies and prison theory 62 5. Conclusions 67 CHAPTER II – ACHIEVING TRANSGEHDER AND NON-BINARY RECOGNITION IN LAW 1. Introduction 69 2. Biological model of transgender recognition in law 72 3. Medical model of transgender recognition in law 82 3.1. Medical science and law: legal recognition of gender change 84 3.2. World Health Organisation: ICD and pathologization of transgender people 97 3.3. Criticism and depathologization movement 101 4. Gender self-determination model of transgender recognition in law 106 5. Conclusions 110 ii PART TWO CHAPTER III – APPLYING THE INTERNATIONAL HUMAN RIGHTS LAW FRAMEWORK TO TRANSGENDER AND NON-BINARY IDENTITIES 1. Introduction 114 2. Getting the UN talk Gender – the feminist activism 117 3. Achieving recognition of transgender and non-binary identities at the UN level: first attempts 123 3.1. Building the momentum: 1980-2000 125 3.2. The Brazilian Resolution and aftermath: 2000-2008 127 a. The Brazilian Resolution 127 b. The aftermath 131 4. Yogyakarta Principles – 2006 135 5. Back to the UN, Human Rights Council 143 5.1. Human Rights Council Resolution #1 – Human Rights, Sexual Orientation and Gender Identity – 2011 143 5.2. Human Rights Council Resolution #2 – Human Rights, Sexual Orientation and Gender Identity – 2014 148 5.3. Human Rights Council Resolution #3 –The Independent Expert on Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity 150 6. Dissecting the transgender rights language in the
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