Appendix II: Analyzing WDI’s Declaration on Women’s Sex-Based Rights

The Declaration, and its predecessor the Theydon Bois Principles, position themselves against the Yogyakarta Principles. Originally developed by international human rights experts after meeting in Yogyakarta, Indonesia in 2006, the Yogyakarta Principles offer guidance on international human rights policy surrounding sexual orientation and gender identity.ⁱ Within, the principles detail rights including but not limited to: equality and non-discrimination, recognition before the law, privacy, a fair trial, freedom from exploitation and human trafficking, and equal access to health care. The core principle, Principle 1, details how “human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights.”ⁱⁱ

The Women’s Declaration has been routinely criticized by activists and academic specialists because of its distortion of international human rights law to call for the removal of trans and gender diverse people from public life. In a deep dive into the Declaration and its arguments, University of Bristol international human rights professor Sandra Duffy highlights how “‘sex-based rights’ are a fiction with the pretense of legality […] and do not in fact exist in the manner that the term is used.”ⁱⁱⁱ The UN Committee on Economic, Social, and Cultural Rights (CESCR) acknowledged the changes of language and concepts within broader societies and that protections based on “sex” also apply to the “social construction of gender stereotypes, prejudices, and expected roles,”^iv and explicitly extends protections to LGBTQ individuals on the basis of sexual orientation and gender identity.^v “‘Sex,’ in [international human rights law], includes the social construct of gender,” Duffy writes. “‘Sex’ as a prohibited ground of discrimination, does not merely refer to biological characteristics. This is established jurisprudence.”^vi

It’s the Theydon Bois Principles where the Declaration establishes its foundation, where both documents lay out their “concerns” with significant portions closely paraphrased or retained word-for-word. Sections that involved more inflammatory language, such as any references in the Theydon Bois Principles to “genderists” or the thoroughly debunked concept of “social contagion,” were removed in the final draft of the Declaration. Meanwhile, the Declaration also included references to “women’s rights to physical and reproductive integrity”^vii in its declaration of stance, attempting to tie women’s rights to the ability to give birth. This framing was not present in the Theydon Bois Principles; the Principles’ declaration of stance was explicitly focused on how anti-discrimination protections based on gender identity are inherently discriminatory.

Unlike the Theydon Bois Principles, the Declaration also includes a lengthy Introduction section referring back to specific General Comments from or Articles in CEDAW, one of the areas that Duffy sharply criticizes, noting that the convention “does not in any way provide ‘sex-based rights’ to women or, as is asserted in the Declaration’s introduction, to lesbians.”^viii This is in part because the categories of man and woman are already understood in international human rights law, sociology, and feminist movements to be social constructs.^ix Through the authors’ selective citation of CEDAW and its General Comments or Recommendations, while leaving out ones which acknowledge the changing perceptions surrounding sex and gender–or even sections within the cited General Comments or Recommendations, as some quotes are cut off mid-sentence to leave out the rights extended to queer, trans and intersex people^x–the Declaration drafters inherently expose their biases. “Any construction of CEDAW,” says Duffy, “– or indeed, of [international human rights law] in general – which attempts to claim that ‘sex’ is an immutable biological category and that ‘gender’ is not a legitimate concept runs counter to years of scholarship and the statements of the UN Committees themselves.”^xi

The distinction is key. The Declaration is comprised of nine articles, drafted in a style parallel to declarations formally published by the UN and with a more polished and official feel than the recommendations originally proposed in the Theydon Bois Principles. The articles in the Declaration also contain policy recommendations on how to “reaffirm” women’s rights based on sex. Ranging from the direct denial of gender identity or its inclusion into anti-discrimination policies, of inclusion of trans women into motherhood and women’s sports, and the right to gender affirming care for trans youth and young adults, the entire Declaration is positioned in opposition to rights that have been fought for by trans people for decades. One article, even, attempts to argue that it is a “sex-based right” to misgender people (Article 4), and another argues the right to hold protests designed to misgender people (Article 5). Most of the original recommendations listed in the Theydon Bois Principles were scrapped by the time the Declaration was published.

Similarly, the Declaration cites as part of its Preamble a number of legal sources that Duffy points out don’t hold any relevance at all to what they’re attempting to claim.^xii Instead they’re included for the flair of a legitimate legal argument for an audience that otherwise would not be able to recognize the discrepancy. It is, in essence, a crank faux-legal document LARPing as established human rights law.

The formatting choice, with articles and signatories and laid out similarly to binding UN documents, is the most curious, as it gives an impression that it is a legally binding document on par with UN Declarations such as CEDAW. Unlike UN Declarations, however, there is no process for consultation from or ratification by state bodies. The Declaration’s purpose couldn’t be more explicit to Duffy: “It becomes clear that what the Declaration is attempting to do is put forward a case for the elimination of ‘gender identity’ from human rights law, and it is then possible to extrapolate from that, that the document would happily see all legal protections removed from trans people.”^xiii

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