How are sexual orientations, gender identities and expressions, and sex characteristics (SOGIESC) addressed in UN conventions, treaty bodies, and decisions: a scoping review.

Abstract

BACKGROUND: Sexual orientations, gender identities and expressions, and sexual characteristics (SOGIESC) concepts are not mentioned in human rights treaties but are increasingly present in the activity of UN treaty bodies, resulting for instance in decisions, general comments and recommendations, concluding observations. Scholars have developed an increasing interest for this inclusion of SOGIESC in international law, more specifically human rights. However, the literature and case work of treaty bodies are not uniform but consist of a diversity of issues and cases under different conventions. A clearer understanding of the legal context could improve human rights advocates’ engagement and facilitate the inclusion of SOGIESC concepts in international human rights law. METHODS: This scoping review aims to better understand how treaty bodies address diverse SOGIESC issues, while illustrating information gaps and contemporary debates through academic literature. A search of two UN treaty bodies’ databases resulted in the inclusion of 58 documents related to treaty bodies’ activity and a search of six academic literature databases resulted in the inclusion of 57 documents that were thematically analysed. Following these key emerging themes, gaps are identified through a “Gender and Sexual Diversity Health and Wellbeing Critical Analysis”. RESULTS: While SOGIESC diversity is not mentioned within any treaty, it is nonetheless present through an evolutive interpretation of human rights treaties by treaty bodies. This evolutive interpretation can be represented by a chronology of legal events and key emerging and maturing themes such as privacy, freedom of expression and peaceful assembly, family life, health, education, sexism and stereotypes, non-refoulement and torture, bodily integrity and the best interest of the child. DISCUSSION: Various disparities based on SOGIESC are now recognised through these key issues. However cis-heteronormativity is seldomly mentioned as a root cause, leaving these disparities “unexplained” and unchanged. SOGIESC concepts are also understood separately from other intersectionalities. Key UN treaty bodies still have not made the connection with SOGIESC, including for example the Committee on the Elimination of Racial Discrimination and the Committee on the Rights of Persons with Disabilities. An important gap appears in academic literature around the mobilisation and applicability of human rights treaties by/for diverse SOGIESC individuals and communities. Treaty bodies can be further mobilised through their general comments or recommendations, concluding observations, and decisions to provide further authoritative norms protecting SOGIESC rights. Specific attention should address substantiating claims properly, with improved investigating and charging practices and with stronger partnerships with SOGIESC diverse communities.