CEDAW

Griffith Law Review
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Queering CEDAW? Sexual orientation, gender

identity and expression and sex characteristics
(SOGIESC) in international human rights law
Gabrielle Simm
To cite this article: Gabrielle Simm (2020) Queering CEDAW? Sexual orientation, gender
identity and expression and sex characteristics (SOGIESC) in international human rights law,
Griffith Law Review, 29:3, 374-400, DOI: 10.1080/10383441.2020.1891608
To link to this article: https://doi.org/10.1080/10383441.2020.1891608
Published online: 09 Apr 2021.
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GRIFFITH LAW REVIEW
2020, VOL. 29, NO. 3, 374–400
https://doi.org/10.1080/10383441.2020.1891608
Queering CEDAW? Sexual orientation, gender identity and

expression and sex characteristics (SOGIESC) in international
human rights law
Gabrielle Simm
Faculty of Law, University of Technology Sydney, Ultimo, Australia
ABSTRACT KEYWORDS
In 2020 the UN Committee on the Elimination of Discrimination Queer; CEDAW (Convention
Against Women (CEDAW Committee) found for the first time that on the Elimination of All
a state had breached its obligations to prevent discrimination Forms of Discrimination
against women in the case of a lesbian couple subjected to a Against Women); UN human
rights; SOGIESC (sexual
homophobic hate crime. No international human rights treaty orientation; gender identity
specifically prohibits discrimination on the basis of sexual and expression; sex
orientation, gender identity and expression, or sex characteristics characteristics)
(SOGIESC). The UN treaty bodies are developing a jurisprudence
on the basis of such claims, with claimants sometimes forced to
argue that they were discriminated against on the basis of ‘other
status’. This article situates the CEDAW Committee’s Views in ON
and DP v Russian Federation in the context of attempts to queer
international law, and international human rights law in
particular. It analyses the costs and benefits of three strategies
aimed at queering international human rights law: equality/
universalism, special rights/a SOGIESC treaty; and queering
CEDAW. The article aims to evaluate the significance of the first
decision finding for the complainants on the basis of
intersectional sexuality discrimination under CEDAW and to
assess whether this amounts to queering CEDAW.
1. Introduction
In October 2014, ON and DP, a lesbian couple, took the underground train home after a
night out in St Petersburg, Russia.1 As they walked home from the station, they held
hands, hugged and kissed. They became aware of two men following them. Suddenly,
one of the men attacked ON from behind. He then hit both ON and DP in the face,
head and body, shouting homophobic insults, and threatened to kill them if he ever
saw them again. The other man filmed the attack on his phone. Shortly after, both
men left. Shaken, ON and DP returned home.2
A day later ON attended a doctor who recorded that she suffered concussion and a
haematoma. DP’s bruises took longer to appear. ON and DP reported the incident
CONTACT Gabrielle Simm Gabrielle.Simm@uts.edu.au Faculty of Law, University of Technology Sydney, 15

Broadway, Ultimo NSW 2007, Australia
1
The authors of the communication requested anonymity: Committee on the Elimination of Discrimination against
Women, Communication No 19/2017, UN Doc CEDAW/C/75/D/119/2017 (27 March 2020) (‘ON and DP’) footnote 1.
2
ON and DP (para 2.2).
© 2021 Griffith University
GRIFFITH LAW REVIEW 375
promptly to the police, asking them to open an investigation into the crime. A week later,
ON and DP followed up with the police, stressing that the violence and threats to kill
occurred in the context of the attacker expressing hatred towards their sexuality. ON pro-
vided a detailed map showing the location of the attack and security cameras that might
have footage of it.3 Police refused to open an investigation on the basis that no crime had
been committed.
Over the next two years, ON and DP attempted to have their complaint investigated
by the police. The supervising prosecutor directed the police to open the case and inves-
tigate four times. ON and DP applied unsuccessfully to the Moskovsky District Court for
a direction that the police investigate their case and appealed its decisions twice but each
time the St Petersburg City Court dismissed their appeal. ON and DP sought to have the
crime treated more seriously, taking into account the death threats made, and reclassified
as a hate crime on the basis of the motive against a social group, in their case, lesbians.
They were unsuccessful on both counts.4 However, in March 2020 the UN Committee on
the Elimination of Discrimination Against Women (the CEDAW Committee) upheld
their complaint against the Russian Federation, finding that ON and DP had been subject
to intersecting forms of discrimination as lesbian women.5
The UN Convention on the Elimination of all forms of Discrimination Against
Women (CEDAW) is the primary UN treaty on women’s rights.6 It aims to prohibit dis-
crimination against women and promote women’s equality with men.7 The 2020 case of
ON and DP was the first time the CEDAW Committee had upheld a complaint about
discrimination on the basis of sexual orientation. The UN Human Rights Committee
first established a right to non-discrimination on the basis of sexual orientation under
the International Covenant on Civil and Political Rights (ICCPR) in 1994.8 In the inter-
vening years, the UN Human Rights Committee and the Committee Against Torture
established under the Convention Against Torture have developed a jurisprudence
addressing violations of human rights and discrimination based on sexual orientation.9
To date there has only been one successful case on gender identity and no cases on gen-
der expression or sex characteristics in the UN human rights treaty body system.10 Given
that a UN treaty to promote the human rights of Lesbian, Gay, Bisexual, Transgender
Intersex, Queer and Asexual (LGBTIQA+) people is unlikely to be adopted in the near
future, CEDAW could offer another path into the human rights system for such claims,
as it prohibits discrimination based on sex (which the Human Rights Committee has
interpreted to include sexual orientation) and gender (which has potential to be inter-
preted by human right treaty bodies to include gender identity).11 This article therefore
3
4
ON and DP (paras 2.4–2.16).
5
6
Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979,
1249 UNTS 13 (entered into force 3 September 1981) (CEDAW).
7
CEDAW, art. 1.
8
International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
(ICCPR); Human Rights Committee, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994) (‘Toonen v
Australia’).
9
Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465
UNTS 85 (entered into force 26 June 1987) (UNCAT).
10
On gender identity, see Human Rights Committee, Communication No 2172/2012, UN Doc CCPR/C/119/D/2172/2012 (2
December 2011) (‘G v Australia’).
11
Discrimination on the basis of sex includes on the basis of sexual orientation: Toonen v Australia, para 8.7.
376 G. SIMM
explores the potential and drawbacks of taking claims based on Sexual Orientation, Gen-
der Identity and Expression, and Sex Characteristics (SOGIESC) under CEDAW, as
compared with the other human rights treaty bodies, and whether doing so would
amount to ‘queering CEDAW’.
What does it mean ‘to queer’ something? A century ago, queer was a derogatory term
but has since been reclaimed to use with pride.12 By the 1990s, queer was being used to
resist categorisation into identity categories such as gay, lesbian, bisexual and trans.13
Queer has since gained an additional meaning as a residual umbrella category of those
who do not feel that they fit neatly into one of the other categories. These changes in
usage demonstrate that the meaning of words changes over time. The verb ‘to queer’,
hence ‘queering’, means to resist categorisation within the binary logic of man/
woman, heterosexual/homosexual, cisgender/transgender, normal/abnormal, natural/
unnatural.14 By contrast, the components of LGBTI are often understood as referring
to particular identities, although intersex refers to an extremely diverse group of people
who have both male and female sex characteristics but who share no common sexual
orientation or gender identity.15 The component terms of SOGIESC derive from particu-
lar historical moments in Western contexts and have since been adopted with established
meanings in the international human rights jurisprudence.16
Non-Western understandings of sexuality and gender are also particular to location
and time and may not divide identities up in the same way.17 This means that it is impor-
tant to be attentive to colonial influences on how gender identity and sexuality are under-
stood in relation to postcolonial subjects approaching the UN human rights treaty body
system. While queer is primarily concerned with celebrating diversity in sexuality and
gender identity, postcolonial queer approaches call attention to the racial and national
aspects of the encounter between non-Western sexual and gender subalterns and inter-
national human rights law.18
This article proceeds in three steps. It begins with an overview of the literature on
queering international human rights law, highlighting some key concerns of queer scho-
larship about engaging with international human rights law. Second, it discusses the jur-
isprudence of the UN human rights treaty bodies on discrimination on the basis of
sexuality. Third, the article assesses what might be gained or lost in the process of queer-
ing human rights law, CEDAW in particular, and whether that is even possible. Finally,
the article concludes with some strategic considerations about the use of the UN human
rights system for activist purposes.
2. Queering international human rights law

The project of queering international law is a relatively recent one.19 According to one of
its principal proponents, Dianne Otto, its goal is ‘to open new ways of seeing
12
Jagose (1997), p 3.
13
Morgan (1995), pp 30–31.
14
Morgan (2000), p 217.
15
Carpenter (2020), p 4.
16
Gross (2017), p 165.
17
Eg Hawley (2001).
18
On sexual subalterns, see Kapur (2005).
19
Although the project of queering international human rights law began earlier: Morgan (2000).
international legal problems and expose the limitations of international law’s normal
response to them’.20 Otto considers it to be both a scholarly and an activist project ‘far
more ambitious than LGBTI normative inclusion’; instead, she sees it as motivated by
‘queer curiosity about international law’s adjudication of the normal’.21 Unlike liberal
feminism, which aims for women to attain equal rights with men, queer has ‘a concern
with pleasure, taking a break from heteronormative enquiry to celebrate human sexuality
and gender expression in all its diversity and fluidity’.22
Otto identifies four ‘puzzles’ for the project of queering international law, each
concerned with balancing the benefits of attaining queer objectives against the
costs of being integrated into the mainstream. More specifically, she asks how
queer politics can achieve its (economic, cultural, legal) aims without being incorpor-
ated into, and adding legitimacy to, existing power structures. I have paraphrased the
first three riddles as follows: How can queer activists address violence and discrimi-
nation without reaffirming the regulatory power of the state? How can queer activists
work in transnational coalitions without treatment of ‘the homosexual’ becoming a
new measure of civilisation? How can queer social and cultural change be promoted
without being assimilated into neoliberalism’s pink economies?23 The fourth puzzle,
most relevant here, is reproduced in full: ‘How can appeals be made to international
human rights law to make precarious queer lives more liveable without legitimising
the heteronormative imperial heritage of the normative framework of international
law?’24
Queer is therefore a method or approach rather than a content matter, although
queer curiosity is interested in sexuality and in highlighting ambiguity. This makes
possible a queer approach to mining or internet rights, for example.25 By contrast,
when international human rights law upholds the rights of individuals to be pro-
tected from discrimination, it extends the categories of rights without fundamentally
altering the nature of such rights. The content of rights has expanded from a prohi-
bition against discrimination on the basis of race, political opinion, and other classic
civil and political rights, to include sex, age, dis/ability and, more recently, sexual
orientation. As Wayne Morgan argues, ‘[p]ursuing legal strategies based upon
human rights notions means validating this theory of identity (at least, when such
strategies are pursued without analysing their potential discursive effects)’.26 Formu-
lating queer demands in the language of human rights poses the risk that queer will
be incorporated to bolster the legitimacy of the international human rights project. It
is a risk that Ratna Kapur and Aeyal Gross address. I now turn to consider their con-
cerns about the cost to queer of participating in the international human rights pro-
ject before addressing a related question about the benefits and drawbacks of
appealing to the international.
20
Otto (2017), p 1.
21
Otto (2017), p 1.
22
Otto (2017), p 1.
23
Otto (2017), pp 6–7.
24
Otto (2017), p 7.
25
On mining see Buss and Rutherford (2017); on internet rights see Zalnieriute (2017).
26
Morgan (2000), p 217.
378 G. SIMM
2.1. Is the human rights system ‘deradicalising queer’?

Ratna Kapur’s chapter in Otto’s collection is entitled ‘The (im)possibility of queering
international human rights’. Kapur’s main concern with international human rights is
that it blunts the cutting edge of queer. Despite queer’s fluidity and refusal to stay on
one side of a binary opposition, ‘the distinction between LGBT and queer becomes
blurred in international human rights advocacy’.27 Kapur argues that ‘Queer engagement
with human rights has taken the radicality out of queer rather than resulting in the queer-
ing of international human rights’.28 In particular, queer seems unable ‘to transform or
destabilise the normative foundations of human rights that remain firmly embedded in
dualistic gender categories and a gender hierarchy, as well as a set of racial and cultural
exclusions’.29 Kapur makes important strategic assessments about the costs and benefits
for queer advocates of engaging with international human rights law. She concedes that
‘obviously legal recognition is better than criminalisation. At the same time, we need to
inquire into the work that queer is doing in international human rights’.30
Kapur argues that it is important to respond to the postcolonial critique of queer. She
points to how Western/Northern symbols of non-heterosexual desire are spreading
across the world as a way of making advocacy for same sex rights intelligible to inter-
national audiences.31 Although this is not mentioned by Kapur in this chapter, an
example might be how the rainbow symbol denoting LGBTIQA+ has migrated from
the West to other countries. Kapur argues further that there is a need to complicate
faith in the human rights project as necessarily progressive and to query its openness
to advocacy by stigmatised sexual ‘others’.32 Finally, drawing on parallels with Janet Hal-
ley’s critique of governance feminism,33 Kapur warns that ‘protection … of some sexual
minorities through human rights is neither radical nor transformative, but regulatory …
Queering human rights emerges as a governance project’.34
Aeyal Gross’ chapter draws on the term Governance Feminism to argue that some
Northern states’ co-option of LGBT advocacy has resulted in Global Gay Governance.35
Where Governance Feminism was coined to describe the ways in which aspects of fem-
inist demands have been incorporated into governance tools,36 Global Gay Governance
refers to how Western governments and international institutions take up some aspects
of LGBT rights advocacy and incorporate them into foreign, aid and financial policies.37
Gross gives the example of financial governance, whereby the UK government and inter-
national financial institutions such as the IMF and World Bank used the threat of finan-
cial sanctions to pressure the Ugandan government to drop a Bill increasing the severity
of criminal sanctions for same sex activity.38 Gross highlights the difficulties of attempt-
ing a cost–benefit analysis of such attempts. For example, is a white US envoy for LGBT
27
Kapur (2017), p 132.
28
Kapur (2017), p 132.
29
Kapur (2017), p 132.
30
Kapur (2017), p 134.
31
Kapur (2017), p 140.
32
Kapur (2017), p 141.
33
Halley et al (2018); Halley et al (2019).
34
Kapur (2017), p 143.
35
Halley et al (2006), p 335.
36
Gross (2017), pp 154–157.
37
See further Rao (2017).
38
Gross (2017), pp 154–157.
rights ‘trying to save brown and black LGBT people from their own oppressors?’ How
should the backlash against LGBT people in Africa be included in the assessment?
How can we even know whether US foreign policy in fact influenced or prevented a
change in domestic criminal law in Uganda?39 The mobilisation of LGBT arguments
in the foreign policy of former colonial powers and economic hegemons risks reinforcing
the idea that ‘homosexuality is something white people in Western countries do that is
then imported into African countries’.40 He suggests that both symbolic costs (colonial
resonances) and material costs (risk of increased homophobia and risk to maternal
and child health when foreign aid is blocked due to gay conditionality) need to be
accounted for in any cost–benefit analysis of Global Gay Governance.41
According to Gross, Global Gay Governance is enacted in the human rights context
through the institutionalisation of sexual orientation and gender identity. The idea of
sexual orientation as determining identity depending on whether the gender of one’s
object choice is the same or different is of Western provenance and does not apply all
over the world.42 Similarly, gender identity is not necessarily either cisgender or trans-
gender.43 Sexual orientation and gender identity were defined in the 2007 Yogyakarta
Principles44 and have since been incorporated into the mandate of the UN Expert.45
The alternative, of sexual rights, includes the rights of sex workers; the right of women
to abortion and other reproductive rights; and the right to sex education in school, as
well as rights relating to sexual practices, gender identities and expression, and sex
characteristics.46 Sexual rights are much more inclusive than protection from discrimi-
nation based on SOGIESC, but campaigns at the 1993 Vienna Conference on Human
Rights, 1994 Cairo Conference on Population and Development, and 1995 Beijing Con-
ference on Women to adopt this language were unsuccessful.47 As a result, the current
international human rights framework is based on Western, binary distinctions that
assume fixed identities. Such an outcome could be expected to disadvantage queer sub-
alterns whose identities and practices do not necessarily fit into the categories adopted in
the international human rights system. Further, some Southern states have strategically
‘appropriated counter-hegemonic arguments as apologia for homophobia’.48
2.2. Is internationalising the answer?

So is internationalising the answer to the question of how to best promote queer objec-
tives? Appealing to international human rights law may be playing into the hands of
39
For a detailed discussion, see Rao (2020).
40
Adebisi Alimi, cited in Gross (2017) 155.
41
Gross (2017), p 158.
42
Gross (2017), p 165.
43
Otto (2015), p 300.
44
The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and
Gender Identity (2006) (the Yogyakarta Principles); The Yogyakarta Principles +10 Additional Principles and State Obli-
gations on the Application of International Human Rights Law in relation to Sexual Orientation, Gender Identity, Gender
Expression and Sex Characteristics to complement the Yogyakarta Principles (2017). http://yogyakartaprinciples.org/
wp-content/uploads/2017/11/A5_yogyakartaWEB-2.pdf.
45
Human Rights Council, Independent Expert on Sexual Orientation and Gender Identity, UN Doc A/HRC/RES/32/2 (30 June
2016).
46
Gross (2017), p 167.
47
Saida Ali et al (2015), p 31.
48
Gross (2017), p 168.
380 G. SIMM
sexual conservatives and nationalists who argue that sexual and gender diversity are
foreign impositions and alien to their culture.49 In many cases, the relevant states are
not parties to human rights treaties or their communication mechanisms, so there is
no option other than to litigate at a national level. When national apex courts strike
down sodomy statutes, many of which date from the colonial era,50 there may be a stra-
tegic benefit in non-heterosexual sex being perceived as culturally consonant with
society. For example, in Indonesia, scholars and public figures have made arguments
in support of LGBT rights from an Islamic perspective.51 Negotiating international trea-
ties is time-consuming and expensive, while appeals to the international human rights
system typically take years to produce an outcome, which may not be accepted by the
state in question or implemented only very slowly.52 Finally, it is important not to see
the international level as purely supportive of queer activism. The Holy See, Organisation
of Islamic Conference and states such as Egypt and the Russian Federation have played a
significant role in blocking and countering resolutions in support of SOGIESC at the UN
General Assembly and in watering down the language in General Comments of UN
treaty bodies.53
Could a regional human rights system lead to a more positive result than the UN
human rights system?54 In the Americas,55 Africa56 and particularly Europe,57 favourable
jurisprudence and the potential for a binding judgment may drive national law reform.
However, in much of Asia, the Pacific and Oceania, no regional human rights system
exists, meaning that the UN human rights system is the only option.58 Moreover, the sup-
posedly universal applicability of the UN human rights treaty bodies means that it can be
used to lobby for law reform even in non-states parties, while in states parties, activists
can build on treaty bodies’ Concluding Observations in relation to state reports.59 None-
theless, such benefits are accompanied by the risk that universalising queer risks spread-
ing Western/Northern symbols of non-heterosexual desire across the globe, raising
doubt as to whether the universalising can be considered an unqualified benefit.
3. The UN Human Rights treaty system on SOGIESC

The UN Human Rights treaty system holds the promise of universality but patchy adher-
ence to the relevant treaties and especially their complaints mechanisms means that its
coverage is uneven. Some of the most egregious human rights violations occur in states
49
Bamforth (2010).
50
Rao (2017), p 15.
51
Hamzic (2011), pp 265–266.
52
Morgan (1994a, 1994b), p 409.
53
Baisley (2016), p 134.
54
Garvey (2010), p 659.
55
State Obligations Concerning Change of Name, Gender Identity, and Rights Derived from a Relationship Between Same-
Sex Couples (Interpretation and Scope of Articles 1(1), 3, 7, 11(2), 13, 17, 18 and 24, in relation to Article 1, of the Amer-
ican Convention on Human Rights), Advisory Opinion OC-24/17 Requested by the Republic of Costa Rica (Inter – American
Court of Human Rights, 24 November 2017), available at http://www.corteidh.or.cr/docs/opiniones/seriea_24_eng.pdf;
Inter-American Commission on Human Rights, ‘Advances and Challenges Towards the Recognition of the Rights of
LGBTI Persons in the Americas’, http://www.oas.org/en/iachr/reports/pdfs/LGBTI-RecognitionRights2019.pdf.
56
Izugbara et al (2020).
57
European Court of Human Rights (2020); Salzberg (2019).
58
For South-east Asia, see Tan (2011).
59
Goodyear (2021).
from which no petition to the UN human rights system is possible.60 As a result, states
with relatively good human rights protections may be overrepresented in cases before the
UN human rights treaty body system. For example, most claims under the Optional Pro-
tocol to the Convention Against Torture are taken against refugee receiving countries by
asylum seekers who fear torture if returned to their country of origin,61 providing an
indirect window into discrimination and violence not able to be examined directly by
the UN human rights treaty bodies.62 Procedural requirements include the need to
show standing and exhaustion of domestic remedies. If these requirements are not
met, the complaint may be struck out as inadmissible.63 A communication may be con-
sidered by only one human rights treaty body so the choice of body is of paramount
importance.
Under most UN human rights treaties, there are four avenues for raising issues of
SOGIESC. They are: first, the Concluding Observations issued by human rights treaty
bodies on regular state reports; second, General Comments issued by human rights treaty
bodies to guide state reporting; third, individual or group communications complaining
of state breaches of their obligations under the treaty; and fourth, inquiries undertaken by
Committee members. This section briefly outlines each of these four options before hon-
ing in on the communications decided on the merits by the Human Rights Committee,
the Committee Against Torture, and the CEDAW Committee.
First, human rights treaties provide that states must report regularly on their
implementation of the treaty to bodies established under the treaty.64 These committees
comprise independent experts who act in their individual capacity rather than as a repre-
sentative of the state of which they are a national.65 In their Concluding Observations on
state reports, treaty bodies may highlight issues that require attention, request further
information or request that states provide an update on their progress in implementing
their obligations under the treaty.66
Second, treaty bodies may issue General Comments (in the case of the ICCPR or CAT)
or General Recommendations (in the case of CEDAW) to provide guidance to states on
their reporting to the Committees.67 General Comments and Recommendations may aid
in interpreting a treaty, including its application to issues or areas not mentioned in the
treaty itself. An example is the Committee Against Torture’s General Comment 2 which
acknowledges that marginalised groups or individuals are especially at risk of torture
‘because of gender, sexual orientation, transgender identity … ’.68 The Human Rights
60
OHCHR (n.d.) a; Hennebel (2020), p 355.
61
Byrnes (2020a), p 500.
62
Eg Human Rights Committee, Communication No 338/2008, UN Doc CAT/C/46/D/338/2008 (23 May 2011) (‘Uttam
Mondal v Sweden’); Human Rights Committee, Communication No 562/2013, UN Doc CAT/C/56/D/562/2013 (23 Novem-
ber 2015) (‘JK v Canada’).
63
Byrnes (2020b), pp 426–428.
64
ICCPR art. 40; CEDAW art 18.
65
ICCPR art 28; CEDAW art 17; UNCAT art 17. Although the propensity of states to elect current and former diplomats and
government officials potentially detracts from their independence: Hennebel (2020), pp 343–344; Byrnes (2020b), pp
399–400.
66
Eg ICCPR: On detention on the basis of sexual orientation: Honduras (CCPR/C/HND/CO/1, 2006), para 13; on imprison-
ment for consensual same sex activities of adults: Cameroon (CCPR/C/CMR/CO/4) 2010, para 12; Eg CEDAW: Singapore,
CEDAW/C/SGP/CO/4 (10 August 2011), para 22 (a).
67
ICCPR art 40; UNCAT art 19; CEDAW art 21.
68
Committee Against Torture, General Comment 2 on Implementation of article 2 by States Parties UN Doc CAT/C/GC/2 (24
January 2008), para 21.
382 G. SIMM
Committee has also referred to SOGI in its most recent General Comments.69 CEDAW
does not refer to sexual orientation or gender identity; however, the CEDAW Committee
has used the concept of intersectionality to refer to discrimination against lesbian, bisex-
ual and transgender women in its General Recommendations.70 More recently, it has
included ‘intersex’ as a prohibited ground of discrimination.71 In practice, the General
Comments and Recommendations are also used by civil society in preparing Shadow
Reports that may lead the Committee to raise questions about state reports and in advo-
cacy with government authorities domestically.72
Third, individuals and groups may file communications complaining about a state
with the relevant Committee.73 Once it has received information from the state party
in question, the Committee issues its Views about whether the state has breached its obli-
gations under the treaty. If so, the Committee may request the state to bring its law and
practice into conformity with the treaty as well as providing remedies to the individuals
or groups concerned. The Committees are not courts and their members are not judges
so their views are not strictly legally binding. Nevertheless, their views are highly persua-
sive as an expert interpretation of the application of the relevant human rights treaty.
Finally, states may have agreed to an inquiry procedure.74 The Committee delegates
some of its members to undertake an investigation which may include a visit to the state’s
territory where reliable information indicates grave or systemic violations of the treaty.75
States may opt out of the inquiry procedure on becoming party to the relevant treaty by
making a declaration that they do not accept the Committee’s competence in relation to
inquiries.76 None of the inquiries undertaken to date raise issues of SOGIESC.77
69
Human Rights Committee, General Comment 37 on the Right of Peaceful Assembly (Article 21), UN Doc CCPR/C/GC/37 (27
July 2020) paras 25 and 46; General Comment No 26: Article 6 (Right to life), UN Doc CCPR/C/GC/36 (3 September 2019)
paras 36 and 61; General Comment No 4 (2017) on the Implementation of Article 3 of the Convention in the Context of
Article 22, UN Doc CAT/C/GC/4 (4 September 2018) para 45; General Comment No 35: Article 9 (Liberty and Security
of the Person), UN Doc CCPR/C/GC/35 (16 December 2014) paras 3 and 9.
70
CEDAW Committee, General Recommendation No 27 on older women and the Protection of Human Rights, UN Doc
CEDAW/C/GC/27 (16 December 2010), para 13; General Recommendation No 28 on Core Obligations of States Parties
under Article 2, UN Doc CEDAW/C/GC/28 (16 December 2010) at para 18; General Recommendation 32 on gender-
related dimensions of refugee status, asylum, nationality and statelessness of women, UN Doc CEDAW/C/GC/32 (14
November 2014) paras 6, 16, 32.
71
General Recommendation No 33 on Women’s Access to Justice, UN Doc CEDAW/C/GC/33 (3 August 2015) paras 8, 49;
General Recommendation No 35 on gender-based violence against women, updating General Recommendation 19, UN
Doc CEDAW/C/GC/35 (26 July 2017) paras 12 and 31.
72
Eg The NGO Sayoni’s Shadow Report led the CEDAW Committee to pose questions relating to sexuality discrimination
to the representative of Singapore which were reflected in the Concluding Observations. Committee on the Elimination
of Discrimination against Women, Concluding Observations on Singapore, UN Doc CEDAW/C/SGP/CO/4/2011 (10 August
2011), para 22(a), cited in Holtmaat and Post (2015), p 319.
73
(First) Optional Protocol to the International Covenant on Civil and Political Rights 19 December 1966, 999 UNTS 171
(entered into force 23 March 1976) art 1; Optional Protocol to the Convention Against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment, 18 December 2002, 2375 UNTS 237 (entered into force 26 June
2006) art 22 (OP CAT); Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against
Women 6 October 1999, 2131 UNTS 83 (entered into force 22 December 2000) art 2 (OP CEDAW).
74
On the inquiry procedure under the CAT, see Byrnes (2020a), pp 492–497; on the inquiry procedure under CEDAW, see
Byrnes (2020b), pp 432–436.
75
OP-CEDAW, art 8; UNCAT, art 20.
76
UNCAT, arts 20, 28; OP-CEDAW, art 10.
77
For the Committee Against Torture, see https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Inquiries.aspx. For
the CEDAW Committee, see Mali (female genital mutilation) (UN Doc CEDAW/C/OP.8/MLI/1) (2019); the UK and North-
ern Ireland (access to abortion in Northern Ireland) (UN Doc CEDAW/C/OP.8/GBR/1); Kyrgyz Republic (bride abduction
and marriage of minors) UN Doc CEDAW/C/OP.8/KGZ/1; the Philippines (access to contraception in Manila) (UN Doc
CEDAW/C/OP8/MLI/1); Canada (murders and disappearances of indigenous women) (UN Doc CEDAW/C/OP.8/CAN/1);
Mexico (femicides in Ciudad Juarez) (UN Doc CEDAW/C/2005/OP.8/MEXICO).
The focus here is on communications as a form of strategic litigation that, if successful,

may lead to domestic law reform in the state concerned and act as an informal precedent
for other international cases. Ground-breaking cases attract media attention that may
signal solidarity with oppressed groups and over time, lead to social and cultural change.
However, the risks of such litigation failing entail legitimising the law and practice of the
state subject to the complaint; emboldening other states whose law or practice is similar;
and potentially unleashing a backlash against the complainants and others perceived to
be associated with them. Hence the benefits and risks of communications to the UN
treaty bodies must be carefully evaluated in every case.
3.1. The Human Rights Committee and the Committee Against Torture
The UN Human Rights Committee administers the International Covenant on Civil and
Political Rights. The majority of UN human rights treaty body jurisprudence on
SOGIESC derives from the Human Rights Committee. As at the time of writing, the
Human Rights Committee had considered 18 communications raising issues of sexual
orientation, with another 11 applications pending.78 The cases trace a trajectory of incre-
mental gains, building on previous cases to gradually widen the sphere in which inter-
national human rights law overrules domestic law discriminating against people on
the basis of their sexual orientation.
Of the communications found admissible by the Human Rights Committee, the
majority raising sexuality discrimination have been successful. Only three out of 18
have been unsuccessful, and two of those have been at least partially ‘overruled’ by
later decisions. The articles most often relied on under the ICCPR are articles 2(1) on
non-discrimination and 26 on equality before the law and non-discrimination.79 Both
articles set out a list of prohibited grounds of discrimination, concluding with the
catch-all phrase ‘or other status’. Despite the lack of text specifically referring to
SOGIESC, the general prohibition on discrimination has usually been interpreted inclu-
sively to uphold the applicants’ claims.
The Human Rights Committee has considered a range of issues in relation to sexu-
ality. The first successful claim under the ICCPR protested the criminalisation of sodomy
which was held to be a breach of privacy against article 17.80 Five communications raised
issues of homophobic hate speech and the freedom of expression and assembly of LGBTI
advocates, of which four were successful.81 They relied on article 19, sometimes in
78
Registered cases for each year are available on the OHCHR website: https://www.ohchr.org/EN/HRBodies/CCPR/Pages/
TableRegisteredCases.aspx. See also ILGA (2019b).
79
Art 2(1): 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other
status (emphasis added). Art 26: All persons are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal
and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status (emphasis added).
80
See Toonen v Australia. In a separate opinion, Mr Bertil Wennergren found a breach of article 26: Toonen v Australia,
Appendix.
81
Communication No 061/1979, UN Doc Supp No 40 (A/37/40) at 161 (1982) (‘Hertzberg v Finland’) was unsuccessful on a
claim under article 19 relating to a radio program; since then Communication No 1932/2010, UN Doc CCPR/C/106/D/
1932/2010 ( 19 November 2012) (‘Fedotova v Russia’); Communication No 1873/2009, UN Doc CCPR/C/109/D/1873/
2009, (25 October 2013) (‘Alekseev v Russia’); Communication No 2092/2011, UN Doc CCPR/C/116/D/2092/2011 (30
384 G. SIMM
combination with articles 2 and 26. Three of four communications raising discrimination
against same sex partners have been successful, although the Human Rights Committee
is yet to uphold the right to same sex marriage.82 Finally, asylum seekers have initiated
communications against states seeking to bar forcible return to their country of origin
or a safe third country, arguing that such removal would expose them to the risk of tor-
ture in breach of article 7. Four of the five claims found admissible were successful.83
The first UN human rights treaty body case to uphold protection from discrimination
on the basis of sexual orientation is worth examining in more detail to enable comparison
with the first case involving sexuality upheld under CEDAW. Toonen was a gay activist
who took a case against Australia in 1991 arguing that Tasmania’s penal code criminalis-
ing sodomy breached the ICCPR.84 The Human Rights Committee found for Toonen on
the basis of a breach of article 17 (privacy).85 This decision followed a string of European
Court of Human Rights decisions finding that the same sodomy statute enacted in a
range of former British colonies had breached the applicants’ privacy.86 The Committee
read prohibited discrimination on the basis of ‘sex’ as encompassing ‘sexual orientation’,
thereby opening the door to further cases on this basis.87 Importantly, the applicants
included lesbians whose sexual activities could have been caught by the statute that crim-
inalised ‘sexual intercourse…against the order of nature’ and who also suffered from the
hostility towards gay men perpetuated by the statute.88 Their inclusion also founded one
of the legal arguments, namely that gay men were discriminated against compared with
adult heterosexuals or lesbian women.89 This has implications for comparison with
CEDAW’s first decision on hate crimes against women on the basis of their lesbian sexu-
ality. In a separate opinion, Human Rights Committee member Mr Bertil Wennergren
found that the Tasmanian criminal law breached Toonen’s right to equality. Equality
has since become the main basis for decisions upholding freedom from discrimination
on the basis of SOGIESC.
The Convention Against Torture prohibits the intentional infliction of pain by a govern-
ment official.90 Article 3 contains an obligation of non-refoulement, or prohibition on
returning a person to a territory in which they may be at risk of torture. The Committee
Against Torture has considered seven communications on SOGI issues, all of them except
one relating to asylum seekers. Only two of six claims admitted in relation to protection
March 2016) (‘Androsenko v Belarus’) and Communication No 2318/2013, UN Doc CCPR/C/123/D/2318/2013 (17 July
2018) (‘Nepomnyaschiu v Russia’) have all successfully argued article 19 in relation to protests and gay pride marches.
82
Human Rights Committee, Communication No 902/1999, UN Doc CCPR/C/75/D/902/1999 (30 July 2002) (‘Joslin v New
Zealand’) argued unsuccessfully for the right of same sex marriage; since then Communication No 941/2000, UN Doc
CCPR/C/78/D/941/2000 (2003) (Young v Australia); Human Rights Committee, Communication No 1361/2005, UN Doc
CCPR/C/39/D/1361/2005 (2001) (‘X v Colombia’) (pension benefits for same sex partners) and Human Rights Committee,
Communication No 2216/2012, UN Doc CCPR/C/119/D/2216/2012 (1 November 2017) (‘C v Australia’) (denial of divorce
to same sex couple married abroad) were upheld.
83
Human Rights Committee, Communication No 1833/2008, UN Doc CCPR/C/103/D/1833/2008 (17 January 2012) (‘X v
Sweden’); Human Rights Committee, Communication No 2149/2012, UN Doc CCPR/C/108/D/2149/2012 (25 July 2013)
(‘MI v Sweden’); Human Rights Committee, Communication No 2462/2014, UN Doc CCPR/C/117/D/2462/2014 (12 July
2016) (‘MKH v Denmark’).
84
Morgan (1994), p 740; Morgan (1993), p 277.
85
Toonen v Australia, para 8.6.
86
Dudgeon v UK App No 7525/76 [1981] ECHR 5; Norris v Ireland App no 10581/83 [1988] ECHR 22, 13 EHRR 186; Modinos v
Cyprus App No 15070/89 [1993] 16 EHRR 485 discussed in Morgan (2000), 209–210 and 218–219.
87
Toonen v Australia, para 8.7.
88
Morgan (1994a), 741.
89
Morgan (1994a), 743.
90
UNCAT, art 1.
against removal to risk of torture under article 3 of the Convention Against Torture were
successful.91 The remaining case related to torture by police and was successful.92 There are
no cases pending before the Committee Against Torture from asylum seekers raising
SOGIESC issues. By contrast, three such cases are pending before the Human Rights Com-
mittee. This suggests that complainants or their advisors view the Committee Against Tor-
ture as less likely to uphold such claims than the Human Rights Committee.
3.2. The CEDAW Committee

CEDAW aims to prohibit discrimination against women on a basis of equality with men.93
It imposes on states parties obligations to prevent and eliminate discrimination in politics,
education, employment, heath care, economic and social services, marriage and the
family.94 It permits temporary special measures, such as quotas, to enable women to
‘catch up’ with men; once equality has been attained, these measures are to be abandoned.95
CEDAW notably lacks any provision prohibiting violence against women although the
CEDAW Committee has attempted to fill this and other gaps through its General Rec-
ommendations.96 As discussed above, it establishes a system of state reporting to the
CEDAW Committee to monitor implementation of the Convention.97
Unlike the rest of the Convention, Article 5(a) refers to both men and women and could
be a basis for a broader obligation of non-discrimination, rather than one where gender is a
synonym for women. Article 5(a) obliges states parties to ‘take all appropriate measures:
To modify the social and cultural patterns of conduct of men and women, with a view to
achieving the elimination of prejudices and customary and all other practices which are
based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped
roles for men and women …
Although it is the least gender-specific provision in CEDAW, article 5(a) does not
acknowledge the existence of sexes or genders in addition to men and women and
remains caught in a binary world view. The text of CEDAW does not refer to SOGIESC,
although some of the General Recommendations since 2008 refer inconsistently to LBT
women and intersex persons.98 It is through the intersectional approach to discrimi-
nation that CEDAW offers most promise to claims on this basis.99
91
Human Rights Committee, Communication No 338/2008, UN Doc CAT/C/46/D/338/2008 (23 May 2011) (‘Uttam Mondal v
Sweden’); Human Rights Committee, Communication No 562/2013, UN Doc CAT/C/56/D/562/2013 (23 November 2015)
(‘JK v Canada’).
92
Committee Against Torture, Communication No 573/2013, UN Doc CAT/C/60/D/573/2013 (23 June 2017) (‘DC and DE v
Georgia’).
93
Article 1 defines discrimination against women; article 2 imposes the obligation on states to eliminate discrimination by
public authorities and by private actors.
94
CEDAW, arts 7, 10, 11, 12, 13, 16.
95
CEDAW, art 4.
96
Eg CEDAW Committee, General Recommendation No 35 on gender-based violence against women, updating General Rec-
ommendation 19, UN Doc CEDAW/C/GC/35 (26 July 2017).
97
CEDAW art 18; Byrnes (2020b), pp 404–405.
98
Eg, CEDAW Committee, General Recommendation 37 on the gender-related dimensions of disaster risk reduction in the
context of climate change, UN Doc CEDAW/C/GC/37 (2 February 2018), para 57(c); cf CEDAW Committee, General Rec-
ommendation 30 on conflict prevention, conflict and post-conflict situations UN Doc CEDAW/C/GC/30 (18 October 2013)
includes no reference to lesbian, bisexual, trans or intersex; neither does General Recommendation 34 on the rights of
rural women, UN Doc CEDAW/C/GC/34 (7 March 2016) despite several references to intersectional discrimination.
99
For an account of the potential of CEDAW particularly in relation to the intersection of gender, race and poverty, see
Campbell (2015), p 479.
386 G. SIMM
The case of ON and DP v Russian Federation is the first successful case raising
sexuality brought under CEDAW. The facts of the case were outlined in the intro-
duction to this article. Russia argued that the case was inadmissible due to lack of
exhaustion of domestic remedies but the Committee found that the merits of the
case were so intricately linked to issues of admissibility that they should be con-
sidered together.100 On the merits, the Committee considered that the Russian Fed-
eration had violated articles 1, 2(b)-(g) and 5(a) of the Convention. It reached this
conclusion by agreeing with the authors, as it did on almost every point, that the
Russian authorities’ actions and inactions were ‘based on gender and sexual orien-
tation stereotypes’ that they were obliged to eliminate and transform.101 The Com-
mittee recalled that ‘discrimination within the meaning of article 1 of the
Convention [includes] gender-based violence against women’.102 The heart of the
finding is that
discrimination against women is inextricably linked to other factors that affect their lives,
including being lesbian women. Accordingly, because women experience varying and
intersecting forms of discrimination, which have an aggravating negative impact, the
Committee acknowledges that gender-based violence may affect women to different
degrees or in different ways, meaning that appropriate legal and policy responses are
needed.103
The Committee then concluded that due to being influenced by negative stereotypes
against lesbian women, the authorities failed to promptly, adequately and effectively
investigate the authors’ complaint about the violent attack or to provide a remedy.104
It recalled its Concluding Observations in the Russian Federation’s last three reports
under CEDAW which expressed concern about violent acts against lesbian, bisexual
and transgender women and called on the government to enact ‘comprehensive anti-dis-
crimination legislation that includes the prohibition of multiple forms of discrimination,
including on the basis of sexual orientation’.105
The Committee recommended that the government provide monetary compen-
sation and psychological rehabilitation to the authors of the communication. More
generally, it recommended that the government provide training to the police on
investigating homophobic hate crimes against lesbian women; comply with its due
diligence obligations to uphold the human rights of women, including lesbians, and
the right to be free from all forms of gender-based violence; promptly investigate, pro-
secute and punish allegations of gender-based violence that could be motivated by
hatred towards lesbians; and provide safe and prompt access to justice to lesbians
who are victims of violence.106 The Committee also directed the Russian Federation
to provide a written response detailing action taken regarding the recommendations
within six months.107
100
ON and DP, para 6.7.
101
102
The Committee appears to have omitted the word ‘includes’. See ON and DP, para 7.3.
103
ON and DP, para 7.4 (emphasis added).
104
105
106
ON and DP, para 9.
107
ON and DP, para 10. At time of writing, no response had been published.
ON and DP cannot be compared directly with Toonen. Where Toonen dealt with acti-
vists’ attempts to decriminalise gay sex by striking down a colonial sodomy statue, ON
and DP was taken in response to a hate crime. The CEDAW Committee bridged the
gaps in the text of CEDAW (no prohibition on violence against women or reference
to lesbians) by referring to General Recommendations on violence against women and
intersecting forms of discrimination.108 Unlike in Toonen, the authors did not consider
themselves to be activists, although it appears that they have accidentally become so with
a landmark outcome that could influence law and practice in Russia and around the
world. In a media interview discussing the Committee’s decision, ON and DP said
that the police had leaked their case to the media soon after they were attacked, and
that in 2020 they still feared for their safety despite the successful outcome at the
UN.109 A case that might be a closer companion case to Toonen, addressing the crimina-
lisation of lesbian sex in Sri Lanka, is currently pending before the CEDAW
Committee.110
In February 2021 the Committee on the Rights of the Child found that Finland had
failed to make the best interests of the child a primary consideration in returning a les-
bian couple and their son to Russia.111 No other human rights treaty bodies have con-
sidered communications raising SOGIESC issues, although there are opportunities to
do so. Despite some encouraging language in General Comments by the Committee
on Economic, Social and Cultural Rights, no communications before that Committee
have raised SOGIESC issues.112 The Committee Against Racial Discrimination
(CERD) is another potential avenue for claims that raise intersectional issues of race
or indigeneity and SOGIESC discrimination, while the Committee on the Rights of Per-
sons with a Disability could likewise be receptive to claims involving both disability rights
and SOGIESC rights.113
4. Strategies
International human rights law has certain inbuilt assumptions about who is human,
what a right is and what sexuality means.114 Once demands are couched in the
language of rights, they change to become more recognisable alongside existing rights.
Gross gives the example of how calls for sexual rights have been transformed into a
campaign for the right to same sex marriage.115 Gayle Rubin’s original queer critique
of Western sexual hierarchies that underlie much of international human rights law
goes to the privileging of certain types of heterosexual relationships (ie monogamous,
reproductive heterosexual marriage over solitary sex/masturbation, same sex partner-
ships and sex work), which disadvantages those whose lives do not resemble this
108
Eg General Recommendation 35, paras 12 and 31 cited in footnote 70; ON and DP, para 10.
109
Cassell (2020).
110
Application No 134/2018 cited in ILGA (2019a), p 42.
111
Committee on the Rights of the Child, Communication No 51/2018 (UN Doc CRC/C/86/D/51/2018) 5 February 2021 (‘AB
v Finland’).
112
Eg ‘other status’: Committee on Economic, Social and Cultural Rights, General Comment 16 on the Equal Right of Men
and Women to the Enjoyment of all Economic, Social and Cultural Rights (art 3 of the Covenant) UN Doc E/C.12/2005/4 (11
August 2005), paras 5 and 10.
113
ILGA (2019a), p 56.
114
Gross (2008), p 239.
115
Gross (2008), pp 245–249.
388 G. SIMM
hetero- norm.116 Giving the UN human rights treaty bodies the power to determine rights
claims runs the risk that they will find against a complainant, setting a negative precedent
internationally and leaving them unprotected at the domestic level either by law or against a
potential social backlash. It also establishes the UN system as the legitimate arbiter of rights.
As argued above, the international human rights system has adopted Western formulations
of sexual orientation and gender identity that potentially exclude postcolonial queers, while
the human rights system itself is one of global gay governance.
Given these concerns, it is important to assess potential strategies for queering inter-
national human rights law by evaluating the anticipated costs and benefits of each strat-
egy. The first three sections of this part consider three ways to channel arguments for
sexuality and gender diversity rights through the UN human rights system. The first is
to argue that sexual and gender diverse communities benefit from universal human rights
just like everyone else, ie, mainstreaming issues of SOGIESC. The second is to argue for
special rights and separate treatment in the form of a human rights treaty aimed at pro-
moting SOGIESC rights in their own right.117 A third option is to take SOGIESC com-
plaints to the CEDAW Committee, the Committee most concerned with sex and gender
discrimination. The fourth section discusses how Darren Rosenblum’s call to ‘un-sex’
and ‘trans’ CEDAW relates to the third strategy of taking SOGIESC complaints to the
CEDAW Committee. Finally, the fifth section analyses whether CEDAW Committee’s
decision in ON and DP amounts to queering CEDAW, arguing in the negative.
4.1. Equality/univeralism
The first strategy is to use existing human rights tools and mechanisms to argue for queer
rights on the basis of universalism. This strategy is evident in the UN Secretariat slogan
that sexual and gender diverse people are ‘free and equal’. It can be heard in the language
used by UN norm entrepreneurs, such as former UN Secretary-General, Ban Ki Moon,
and former UN High Commissioner for Human Rights, Navi Pillay.118 In addition to the
adoption of resolutions by UN bodies such as the Human Rights Council and General
Assembly, it means approaching the mainstream human rights treaty bodies, such as
the Human Rights Committee and the Committee Against Torture, and extending the
jurisprudence of the other human rights treaty bodies, regarding discrimination on the
basis of ‘other status’.119 This may be facilitated by the human rights treaty bodies adopt-
ing General Comments on SOGIESC as well as ‘mainstreaming’ SOGIESC by incorpor-
ating such issues into all General Comments and work of the committees generally.
The main argument in favour of such approach is that it is currently available. The UN
human rights treaty body jurisprudence constitutes a system of informal precedents that
may influence, and be influenced by, progressive developments in regional human rights
systems. Many states are already parties to the relevant treaties and familiar with the pro-
cesses, while a large NGO machinery is directed toward encouraging states to become
116
Rubin (1984), pp 151–153.
117
In the absence of such a treaty, see O’Flaherty (2015), p 280.
118
Baisley (2016), pp 155–160.
119
See Committee on Economic, Social and Cultural Rights, General Comment 14: The Right to the Highest Attainable Stan-
dard of Health (Article 12 of the Covenant) contained within UN Doc E/C.12/2000/4 (11 August 2000), para 18 (sexual
orientation); General Comment 20: Non-discrimination in economic, social and cultural rights, UN Doc E/C.12/GC/20
(23 July 2009) para 32 (sexual orientation and gender identity) para 11 (sexual orientation).
parties to human rights treaties and improving their implementation, using the human
rights treaty bodies’ views and Concluding Observations as a measure. Incremental shifts
that gradually widen the ambit of human rights protection require less effort and elicit
less pushback from states than adopting new treaties or complaint mechanisms. Further,
denial of SOGIESC claims within the existing system potentially amounts to denying the
humanity of those claiming rights: some states may be reluctant to risk their reputations
as law-abiding international ‘citizens’ while others may rely on state sovereignty to justify
their current law and practice. Finally, appeals to universal equality may lead to more
inclusive cultural and long term social change in the long run.
However, such a strategy potentially reduces the urgency and impetus for significant
change. There is a risk that the specificity of queer needs and desires will be lost due to
insufficient attention. It may be difficult to see the difference between universal equality
and the status quo, whereby queers remain a minority in the heteronormative world of
human rights law. In short, Kapur’s fear is realised that rather than queering human
rights law, international human rights law ‘takes the radicality out of queer’.120 Such
an assessment may be too negative; real gains have been won by cases brought by activists
at great personal cost that have led to legal and social change over the last thirty years.
Nevertheless, it is difficult to say that international human rights law has radically chan-
ged; rather, the categories of persons whose rights are protected have expanded, without
the categories of rights, or the rights system, having changed.
4.2. Special rights/ a SOGIESC treaty

A second strategy is to promote the negotiation and adoption of a UN human rights
treaty devoted to the prohibition of discrimination on the basis of SOGIESC. This is
the opposite of mainstreaming and amounts to promoting special rights to address the
needs of specific groups: however, there is nothing to prevent universal/mainstreaming
and separate/special rights strategies from being pursued simultaneously. A SOGIESC
treaty could be based on the Yogyakarta Principles, with the potential addition of new
rights.121 A variation on this is the proposal to adopt a second Optional Protocol to
CEDAW on SOGIESC rights.122
There are several advantages of adopting a new treaty to prohibit discrimination on
the basis of SOGIESC. First, it would promote the visibility of human rights violations
on these bases at an international level and may encourage states to take such issues
more seriously than they do at present. Second, if the machinery of state reporting, Gen-
eral Comments, a communication mechanism and inquiry procedure were also adopted,
the treaty body might become a repository for expertise in this area of human rights law,
with the potential to influence significant change in state law and practice at a domestic
level. This model could promote greater sensitivity to such violations and become an
educative tool throughout the UN and regional human rights systems. The ultimate
test of its efficacy would be the extent to which it transformed the everyday lived experi-
ence of sexual and gender minorities around the world.
120
Kapur (2017), p 132.
121
Rosenblum (2011), p 194.
122
Hernandez-Truyol (2011), p 195.
390 G. SIMM
On the other hand, multiple factors militate against such a strategy. At a practical level,
there is a general reluctance among states to adopt new treaties, which is more pro-
nounced in the area of human rights.123 Moreover, a treaty promoting human rights
on the basis of SOGIESC is unlikely to achieve wide adherence in the short term. The
failure of courts and tribunals to consistently apply general human rights law to
SOGIESC issues is the reason why the Yogyakarta Principles were adopted by non-
state experts outside the UN system,124 suggesting that the adoption of a UN SOGIESC
human rights treaty by states was considered unlikely. Further, if its membership were
dominated by Western/Northern states, such a treaty could be seen as a form of Global
Gay Governance that risks playing into the hands of those who argue against human
rights, the UN and queer rights in particular as foreign impositions alien to national tra-
ditions. Finally, a treaty specifically on SOGIESC may be perceived as relevant to only a
small percentage of people who identify as LGBTIQA+, and hence a queer ‘ghetto’, rather
than as a treaty that prohibits a new category of discrimination that is potentially avail-
able to everyone.
The proposal to ‘super-sex’ CEDAW by adopting a second Optional Protocol on the
rights of LBTI women is problematic as it seems to conceptualise SOGIESC issues as a
subset of gender issues, rather than as deserving of a free-standing treaty of their own.
Compared to the other human rights treaty bodies, the CEDAW Committee has also
been slow to address sexuality, failing to mention it in its Concluding Observations
between 2002 and 2008, and appearing reluctant to consider gender identity as relevant
to anyone except transgender people.125 Finally, strategic concerns arise that including
SOGIESC issues within CEDAW, which has suffered from marginalisation as ‘the
other’ human rights treaty body,126 could undermine impetus for more significant
changes elsewhere in the human rights system.127
4.3. Queering CEDAW

A third strategy is to use the existing treaty devoted to prohibiting discrimination on the
basis of sex or gender and promoting women’s equality, CEDAW, but to queer it. What
might queering CEDAW mean? As discussed above in relation to the broader projects of
queering international human rights law and international law more generally, a first step
could be to reimagine CEDAW and use it to ‘celebrate human sexuality and gender
expression in all its diversity and fluidity’.128 Rather than seeking to define identities
(such as lesbian women), queering CEDAW would extend the protection of non-dis-
crimination and the right to equal treatment to all who claim it on the basis of sex(ual
orientation or characteristics) or gender (identity or expression).
123
For example, the negotiation of the draft Convention on the Rights of Older Persons is proceeding very slowly
although Covid-19 may change this: Bridget Sleap et al (2020).
124
Yogyakarta Principles, see n 42, preamble.
125
Otto (2015), p 308.
126
Byrnes (1989), p 1.
127
Eg the Independent Expert on Protection Against Violence and Discrimination Based on Sexual Orientation and Gender
Identity appointed under Human Rights Council Resolution 32/2, UN Doc A/HRC/RES/32/2 (15 July 2016), extended in
Human Rights Council resolution 41/18, UN Doc A/HRC/RES/41/18 (19 July 2019).
128
Otto (2017), p 1.
In ON and DP the CEDAW Committee applied the principle of non discrimination

against women to a new subcategory of women ie lesbian women; however, this does
not amount to queering CEDAW. Using an intersectionality approach enabled the
CEDAW Committee to reach the conclusion that the Russian Federation had failed to
protect ON and DP from discrimination by the police against them as lesbian
women.129 The Committee broadened the impact of its Views by recalling its concern
about the Russian Federation’s treatment of violence against bisexual and transgender
women, as well as lesbian women.130 Nevertheless, all these protected categories are
‘species’ of the ‘genus’ women, with the Committee silent in relation to intersex people
and men who may need protection against unlawful treatment on the basis of SOGIESC.
Taking a broader, more inclusive approach of queering CEDAW would likely have led to
the Russian Federation’s flat rejection of the Committee’s views as straying outside the
purview of the Convention and its own jurisdiction. Hence, the decision in ON and
DP may have disrupted some of CEDAW’s heteronormative assumptions and opened
a limited pathway for the inclusion of sexual diversity. Nevertheless, the structure of
international human rights law constrains the Committee from overcoming the treaty’s
essentialist and binary understandings of sex and gender.131
At the same time, it is important to assess the impact of internationalising when eval-
uating the success or otherwise of ON and DP in queering CEDAW. The complaint con-
cerned the Russian Federation, a bulwark against attempts to queer international human
rights law. In 2014 the Constitutional Court of Russia upheld the validity of the 2013 fed-
eral ‘Homosexual Propaganda’ law and earlier similar regional laws.132 Gay activists suc-
cessfully appealed this decision to the European Court of Human Rights, which found
that the law breached rights to freedom of expression and non-discrimination.133 Rus-
sia’s ‘Homosexual Propaganda’ law dates from 2013, unlike the colonial era anti-sodomy
statute successfully contested in Toonen.134 Further, the Russian Federation maintains
that the 2013 law is a necessary and proportionate measure to protect children from
information about non-traditional sexual and family relations and that the law has strong
support among most Russians today.135 Any assessment of ON and DP as a step towards
queering CEDAW must be tempered by the potential for Russia to mobilise nationalist
sentiment against international human rights treaty bodies finding against it, using
different language to argue in effect that those decisions constitute forms of Global
Gay Governance.
4.4. Unsex-ing/trans-ing CEDAW

While not using the term ‘queering’, Darren Rosenblum’s arguments about ‘unsex’-ing
and ‘trans’-ing CEDAW may be used to make CEDAW go further towards including
129
ON and DP, para 7.4 (emphasis added).
130
131
I am grateful to an anonymous reviewer for drawing out the implications of this decision in light of my argument on
queering CEDAW.
132
Code of Administrative Offences of the Russian Federation 2001, art 6.21; Constitutional Court of the Russian Federa-
tion [2014] no 24 cited in Bayev and others v Russia, Application No 67667/09 [2017] ECHR, para 25.
133
Bayev and others v Russia, Application No 67667/09 [2017] ECHR, para 92. See further Human Rights Committee, Com-
munication No 2318/2013, UN Doc CCPR/C/123/D/2318 (17 July 2018) (Nepomnyashiu v Russia).
134
Kirby (2011), pp 10–12.
135
Bayev v Russia, para 65.
392 G. SIMM
sex and gender diversity. Taking his cue from Shakespeare’s Lady MacBeth, who sees her
feminine gender as obstructing her power to arrange the murder of King Duncan, Rosen-
blum argues that ‘CEDAW must also be “unsexed” to realize its potency’.136 According to
Rosenblum, ‘CEDAW’s focus on “women” enshrines the male/female binary at the core
of international law, when CEDAW’s goals would be better served by seeking the elim-
ination of the categories themselves’.137 Rosenblum traces the move from prohibitions
against discrimination on the basis of ‘sex’ in the Universal Declaration of Human Rights
and the International Covenants on Civil and Political Rights and Economic, Social and
Cultural Rights to ‘women’ on the basis of equality with men in CEDAW.138 He shows
how ‘women’ functions as an identity, thereby excluding ‘men, women who are not vic-
tims and all other sexes’.139 This contrasts with the treatment of ‘race’ as a category of
prohibited discrimination under the CERD which does not specify a particular race
(eg ‘blacks’ as an identity group in a ‘white’ majority society).140 A solution might be
to treat gender as a category of prohibited discrimination, rather than as a synonym
for women.
Rosenblum argues further that CEDAW should be ‘trans-ed’, that is, ‘it should no
longer reflect a sex binary to the exclusion of other genders’.141 According to Rosen-
blum, ‘[t]ransgender people emerge as the most clearly excluded individuals … Men
do not appear in CEDAW, except as shadow comparators for women’s equality
and implicit perpetrators of their inequality’.142 In the case of CEDAW, the risk
that men would use to treaty to argue against affirmative action or positive discrimi-
nation, despite Article 4 stating that such temporary measures were legitimate means
to enable women to ‘catch up’ to men, was an important reason why CEDAW was
drafted to promote the rights of women, rather than to prohibit discrimination
based on the category of sex, like the Universal Declaration of Human Rights and
the International Covenants. Although Rosenblum does not refer to this, intersex
people would also presumably benefit from ‘trans-ing’ CEDAW. While trans is
usually conceived of as male to female or female to male, there are many more pos-
sibilities of intersex variation, making intersex the most diverse and binary-confound-
ing group under the LGBTI umbrella.143 Although it is difficult to think of an example
of how heterosexual people are discriminated against on the basis of their sexuality, or
cisgender people on the basis of their gender identity, such a treaty would in principle
be available to them too.
4.5. Assessing the strategy of queering CEDAW

What would be gained from queering CEDAW? Some feminists and queer theorists
have identified the subjugation of women and LGBTIQA+ people as stemming from
the same cause: heteronormative patriarchy. From this perspective, feminist and
136
137
138
Rosenblum (2011), pp 119–125.
139
140
Rosenblum (2011), pp 118–120.
141
142
143
Carpenter (2020), p 1.
queer activists form a natural alliance against conservative forces that script sexu-
ality to shore up existing power relations. The CEDAW Committee could adopt a
General Recommendation specifically focussed on SOGIESC;144 however, a Rec-
ommendation is more likely on Article 5(a) CEDAW, which requires modification
of ‘cultural patterns of conduct’, including analysis of the link between gender
stereotypes and roles and discrimination against sexually and gender diverse
people.145 CEDAW is the best site in the UN human rights system to call attention
to discrimination against lesbian and bisexual women. It may also be the site of a
test case for promoting the rights of trans people because, whether they are male
to female or female to male, CEDAW would need to address the issue of their mas-
culine gender identity, whether at birth or as self-identified. This provides an oppor-
tunity for the CEDAW Committee to take an intersectional approach inclusive of
trans people.146
What would be lost by queering CEDAW? First, there is a potentially large constitu-
ency of women, including some who identify as feminists, who might resist attempts to
queer CEDAW.147 Martha Nussbaum gives the example of how in conservative societies,
it may already be difficult to promote the rights of women without allying with an unpop-
ular cause thought by many to be immoral, particularly where same sex relations or
transgender identity or expression are criminalised.148 A related concern among some
feminists may be that ‘the coherence of the category “women” as an organising focus
will be threatened if gender is understood as mobile and plural’.149 Second, there is con-
cern that CEDAW may be too heteronormative to encompass queer experiences. Otto
argues that under CEDAW, ‘women’s experience of “family life” is assumed to be mar-
ried and heterosexual … ’150 CEDAW ‘fails to address discrimination that many women
face … . as lovers of other women … ’ or to recognise diverse family forms and the vio-
lence that occurs within them.151 Third, CEDAW is focussed on promoting a gender
group (women) rather than preventing discrimination based on the category of gender
(male, female, non-binary) and thereby excludes men and potentially non-binary gen-
ders. While the CEDAW Committee regularly refers to intersectional discrimination,
references to transgender (male to female) women have been few and inconsistent,
and CEDAW offers no possibility for critique or even acknowledgment of discrimination
faced by gay or bisexual men. (It is not clear whether gay or bisexual men, or heterosexual
cisgender men for that matter, would see an additional human rights avenue being made
available to them under CEDAW as a benefit.) From a sexuality and gender activist pos-
ition, trying to squeeze queer into the straightjacket of CEDAW may be a compromise
that is not worth making.
144
Ernst (2012), p 19.
145
Holtmaat and Post (2015), p 336.
146
Otto (2015), p 316.
147
On the continued focus on women that ignores dialogues with queer theory, see Heathcote (2019), p 143. On the split
between feminist and queer theory, see Halley (2006).
148
Nussbaum (2016), p 609; Atrey (2018), p 859.
149
Otto (2015), p 306.
150
Article 16(1) except in their rights as a parent which are to be enjoyed regardless of marital status’ Otto (2012), p 326.
151
Otto (2012), p 326.
394 G. SIMM
5. Conclusion
A single case decided in favour of a lesbian couple is a long way from having achieved the
aim of queering CEDAW, much less queering international human rights law. As dis-
cussed, incorporating queer into legal frameworks comes with the risk of de-radicalising
it. Any gains must also be assessed against the implications of adopting an internationa-
lising approach, which risks providing fodder for those states that mobilise anti-Western
rhetoric to argue that queer rights represent unwanted outside interference in their
society. Nevertheless, the case of ON and DP provides a foothold for queering the juris-
prudence of the CEDAW Committee. Such strategic litigation before the UN human
rights treaty bodies may achieve more than legal recognition of sexual and gender diver-
sity. Equally or more important is achieving related aims of attracting media attention,
forcing domestic law reform and encouraging public debate that may eventually lead
to shifts in practice from discrimination and violence to inclusion and even celebration.
Whether to attempt to queer CEDAW is a strategic question for queer activists and
human rights lawyers. From examining the CEDAW Committee’s approach to SOGIESC
issues as reflected in its General Recommendations, Concluding Observations and in
relation to the first communication raising sexuality, CEDAW has proven less promising
than might have been expected. This can be explained by reference to the binary model of
gender that structures the Convention, excluding men and people who identify as neither
men nor women. CEDAW is built on heteronormative assumptions that women who do
not have male partners are exceptions to the norm. Perhaps counterintuitively, CEDAW
may be more resistant to queering international human rights law than ‘mainstream’
human rights treaties, such as the ICCPR and ICESCR, which do not hold out a particu-
lar gender group (women) as the object of their protection, but lay claim to universal
applicability.
Acknowledgments
Thanks to Andrew Byrnes, Shaunnagh Dorsett, Katherine Fallah, Beth Goldblatt, Vanja Hamzic,
Wayne Morgan, Brian Opeskin, Linda Steele and participants at the Harvard Law School Institute
for Global Law and Policy Conference 2018 for discussion and comments on earlier versions.
Thanks also to Tamsin Paige for editorial comments, to two anonymous referees for insightful
feedback, and to Seemantani Sharma for excellent research assistance funded by a UTS Research
Equity Initiative Covid19 Carer’s Grant.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes on contributor
Gabrielle Simm’s research takes socio-legal and feminist approaches to international law. Before
entering academia, she was a diplomat and government lawyer where her responsibilities included
advising on CEDAW. These views are her own.
ORCID
Gabrielle Simm http://orcid.org/0000-0002-6114-8469
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Queering CEDAW? Sexual orientation, gender identity and

CONTACT Gabrielle Simm Gabrielle.Simm@uts.edu.au Faculty of Law, University of Technology Sydney, 15

2. Queering international human rights law

2.1. Is the human rights system ‘deradicalising queer’?

2.2. Is internationalising the answer?

3. The UN Human Rights treaty system on SOGIESC

The focus here is on communications as a form of strategic litigation that, if successful,

3.2. The CEDAW Committee

4.2. Special rights/ a SOGIESC treaty

4.3. Queering CEDAW

In ON and DP the CEDAW Committee applied the principle of non discrimination

4.4. Unsex-ing/trans-ing CEDAW

4.5. Assessing the strategy of queering CEDAW

Human Rights Committee, Communication No 2318/2013, UN Doc CCPR/C/123/D/2318/2013

Committee on the Elimination of Discrimination against Women, Report on Mexico produced by

Annemarie Jagose (1997) Queer Theory: An Introduction, Melbourne University Press.

Articles and Book Chapters

Reports and websites

Inter-American Commission on Human Rights, ‘Advances and Challenges Towards the

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