The origins of gender identity and gender expression in Anglo-American legal discourse

Abstract

Anglo-American lawmakers are in the midst of introducing a series of anti-discrimination protections for trans people. By and large, they are making this change by adding the terms ‘gender identity’ and ‘gender expression’ to a variety of human rights law instruments. In June 2017, for example, the Parliament of Canada passed Bill C-16, An Act to Amend the Canadian Human Rights Act and the Criminal Code. The legislation adds the terms ‘gender identity or expression’ to the Canadian Human Rights Act, along with the hate crimes provisions of the Criminal Code. Similar pieces of legislation have been introduced in the United States and the United Kingdom. While legal scholarship has spent considerable time debating the merits of such legislation, comparatively less attention has been paid to the plural, and often contradictory, history of ‘gender identity’ and ‘gender expression.’ This article traces the origins of these terms, arguing that ‘gender identity’ is the product of mid-century psychiatric discourses that constructed trans people as a narrow class of persons. ‘Gender expression’ is a comparatively newer concept, emerging in the 1990s in concert with performative theories of gender that sought to demonstrate how disciplinary norms are imposed on all members of society. The contemporary reliance on these terms reflects what Eve Kosofsky Sedgwick has called the tension between ‘minoritizing’ and ‘universalizing’ accounts of gender and sexuality. The article is organized in four parts. Part I traces the origins of the term ‘gender identity,’ along with how it migrated from clinical contexts to legal forums. In 1994, the City of San Francisco became the first Anglo-American jurisdiction to entrench the term in a human rights instrument. Part II tracks the comparatively shorter history of the term ‘gender expression.’ The Part then traces the term’s reception into human rights discourse, with New York City becoming the first Anglo-American jurisdiction to use the term ‘gender expression’ in 2000. Part III examines how two terms emerging out of different historical moments and with different sets of normative preoccupations have recently fused together to capture how individuals internally identify their gender and externally perform it. The article concludes by anticipating future implications for the corpus of trans human rights law, which will inevitably continue to grapple with the tension between minoritizing and universalizing approaches.

Supporting Transgender Inclusion and Gender Diversity in Schools: A Critical Policy Analysis

“…For instance, gender identity and gender expression were included in 2012 as part of the Ontario Human Rights Code (OHRC) (Ontario Human Rights Commission, 2012a ). As a result, Ontario became the first province in Canada to legally recognize the term “gender expression” (Kirkup, 2018 , p. 109). Conversely, at the federal level there has been a struggle to introduce similar grounds for discrimination.…”

Homophobia and Homonationalism: LGBTQ Law Reform in Canada

“…One of the first acts of the new government was to respond to the long-standing political mobilization of the trans community around the reform of federal human rights legislation to explicitly include gender identity and gender expression (Canada, 2017). While complaints of discrimination on these grounds in federal jurisdiction had been accepted by the Canadian Human Rights Commission since at least 2000, this explicit inclusion had been long sought and was the first measure on LGBTQ rights that was taken by the new Liberal government (for an overview of trans issues, see Kirkup, 2018). One year after their election, the government appointed a special advisor on LGBTQ affairs, MP Randy Boissonnault (Canada, 2018b).…”

Shaping methodology to explore language use in discourse on child and youth rights

“…The latest research findings confirm the challenges to multilingual discourse on youth and minors' rights protection in the rhetoric of international institutions, despite the alleged centrality of the protection discourse agenda in official policies. This concerns issues of realistic utopia of human dignity concept in administrative-legal settings (Habermas, 2018a), linguistically expressed discrimination or underestimation of human rights regarding various target audiences, including gender identity and gender expression (Kirkup, 2018), minority communities (Enarsson, Lindgren, 2019;Malloy, 2019) and ageing population (Phelan, 2018) rights representation, the issues of childcare (Camilletti, Banati, Cook, 2018). The above situation explains why Academia puts on the research agenda the investigation of such concepts as a child and youth rights-conscious concepts and argues that it is timely to explore their operation within the following dimensions:  discourse practice (Barros, 2018;Gasper, 2005),  philosophy of language for human rights (Boersema, 2018)  the essence of reference and referring, "Use" and "Truth-Conditions" theories, implicative relations (Lycan, 2018).…”