Category: trans* law

This post concerns the Declaration on Women’s Sex-Based Rights produced by a group called the Women’s Human Rights Campaign. This Declaration self-describes as being

“On the re-affirmation of women’s sex-based rights, including women’s rights to physical and reproductive integrity, and the elimination of all forms of discrimination against women and girls that result from the replacement of the category of sex with that of ‘gender identity’, and from ‘surrogate’ motherhood and related practices.“

This post owes a lot to Mallory Moore’s excellent explainer of the introduction to the Declaration and is intended to complement Mallory’s piece by arguing from IHRL that the Declaration is founded on false premises. The writer of this post is an academic lawyer working in the field of international human rights with a specialisation in gender and sexuality. I have written and taught on CEDAW, the Yogyakarta Principles, and gender diversity in IHRL. I am writing this post in my personal capacity and it does not reflect the views of my employers past or present, or any individual apart from myself.

In writing this post, I am hoping to highlight the misuse of international human rights law in the Declaration. The intended and actual harm of the Declaration, being a call for the removal of transgender persons from public life – including the repeal of gender recognition legislation, the removal of trans persons from politics and sport, a ban on trans women using ‘women’s spaces,’ etc – should be incredibly obvious to anyone reading the Declaration. I hope that this post will delegitimise the attempted basis for the document and undo its purported legal elements. 

International human rights law, or ‘IHRL,’ in this context is being used to refer to the jurisprudence and other outputs of the United Nations human rights protection mechanisms, as well as the foundational Covenants and Conventions which establish the institutions and principles of international human rights law. 

International human rights law is not static or originalist. One of the first things we teach our human rights law students about the United Nations system is that the Committees/Treaty Bodies which monitor the Covenants and Conventions also exist to interpret them. In this manner, the jurisprudence of the Treaty Bodies should be taken into account when analysing the Treaties themselves. 

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It is important to note from the outset that ‘sex-based rights’ are a fiction with the pretense of legality [edit: the original post used the phrase ‘legal fiction’ but it was pointed out to me that that assumes a legitimacy in the concept that it does not have] and do not in fact exist in the manner that the term is used. What is being claimed here is that ‘gender’ does not exist and that ‘sex,’ once assigned, is immutable. This analysis rejects this formulation. This analysis also rejects the Declaration’s attempts to argue from international human rights law (IHRL) sources, which are misguided, ill-applied, and in many places unsourced.

The Declaration attempts to argue from international human rights law that there are law-based ‘women’s rights’ which which inhere in people based on a certain set of physical characteristics correlating to an assignation of sex, which is then/has always been immutable. However, there is no basis for this assertion in IHRL. In fact, back as far as 2009, the Committee on Economic, Social, and Cultural Rights, in General Comment no. 20, noted that “Since the adoption of the Covenant, the notion of the prohibited ground “sex” has evolved considerably to cover not only physiological characteristics but also the social construction of gender stereotypes, prejudices and expected roles.” ‘Sex,’ in IHRL, includes the social construct of gender. ‘Sex’ as a prohibited ground of discrimination, does not merely refer to biological characteristics. This is established jurisprudence.

It is also notable that the CESCR, in this observation, acknowledges the evolution of terminology in IHRL – something which the WHRC Declaration resoundingly fails to do. 

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The central documents cited by the Declaration are the Convention on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Comment no. 35, and the UN Declaration on Violence Against Women. A General Comment is a document written by a Treaty Body to explain, expand on, or interpret a certain Convention article or thematic issue. A UN Convention is a document binding on States Parties who are signatories. States must implement the provisions of the Convention in their law and policy, and they are reviewed by the Committee on the success of this implementation. A Declaration is a non-binding document. 

The first and most important thing to note is that the CEDAW Convention does not in any way provide ‘sex-based rights’ to women or, as is asserted in the Declaration’s introduction, to lesbians. This claim is untrue for a number of reasons. Firstly, there are no such thing in IHRL as ‘sex-based rights.’ As explained repeatedly in this post, there are no rights which inhere in a person based on their physical characteristics. There is such a thing as protection from discrimination based on sex, wherein sex is one of a number of protected characteristics (for example, International Covenant on Civil and Political Rights, Article 26) – however, ‘sex’ is broadly understood to also refer to the social aspects of gender (see CESCR citation above).

Secondly, and rather obviously, lesbians are not a sex class and therefore could not have ‘sex-based’ rights, even if such a thing were possible.

Thirdly, CEDAW itself recognises that the categories of ‘man’ and ‘woman,’ which the Declaration believes to correlate to immutable physical sex, are in fact socially constructed. There is evidence for this in Article 5 of CEDAW, which seeks to “modify the social and cultural patterns of conduct of men and women.” This has been extensively discussed by prominent legal scholar and expert on law and gender, Professor Dianne Otto. I have also written on this, extracted here:

“…Otto reads CEDAW itself as open to an interpretation which validates social gender identities, as seen in the Introduction and Article 2(f), which both refer to gender roles and customs and practice as social constructions which must be changed in order to create meaningful equality between men and women… Although these passages do not themselves disrupt the sex binary, they form a clear acknowledgement that ‘men’ and ‘women’ are identities which have, and are governed by, social roles rather than being purely biologically based.”

Any construction of CEDAW – or indeed, of IHRL 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. 

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One paragraph in the Declaration’s introduction posits that “[r]ecent changes replacing references to the category of sex, which is biological, with the language of ’gender’, which refers to stereotyped sex roles, in United Nations documents, strategies, and actions, has led to confusion which ultimately risks undermining the protection of women’s human rights.” This sentence needs to be broken down to have its nonsensical basis understood.

Firstly, ‘biological sex,’ following Judith Butler’s work, can also be seen as a socially constructed phenomenon. It is not untrue to say that bodies have physical characteristics, but those physical characteristics are not immutable. Sex characteristics can be changed. Sex characteristics are also not dyadic – they do not split neatly into two boxes, but come in many different variations. The fact that we have named categories for the two majority physical presentations of humans does not mean that those are either the only two options, or that those are eternal and fixed categories. People are assigned to a sex category based on their (usually) observed physical characteristics at birth. Sexed categories are human inventions. Therefore, to attempt to inhere immutable human rights in people based on their physical characteristics at birth is an absurd proposition. 

Secondly, ‘gender’ does not refer to “stereotyped sex roles” anywhere in IHRL, which is what is being claimed. The definition adopted by the United Nations is that which comes from the Yogyakarta Principles (2007), a non-binding but highly influential international document. The YPs state that gender identity is:

“understood to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.”

This is the definition accepted by many of the UN human rights bodies, in particular the Office of the Independent Expert on Sexual Orientation and Gender Identity, which has repeatedly cited it. Nowhere does it refer to “stereotyped sex roles.” Nor does the Declaration give any sense of what a ‘sex role’ is, how one can be stereotyped, and how the use of the term ‘gender’ could give rise to any such “confusion.” 

Lastly, and once again, there is no proof given of how any of this could “undermin[e] women’s human rights,” or, indeed, where these unspecified rights which are being purportedly undermined are located in law.

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The next paragraph goes on to state that “[t]he confusion between sex and ‘gender’ has contributed to the increasing acceptability of the idea of innate ‘gender identities’, and has led to the promotion of a right to the protection of such ‘identities’, ultimately leading to the erosion of the gains made by women over decades. Women’s rights, which have been achieved on the basis of sex, are now being undermined by the incorporation into international documents of concepts such as ’gender identity’ and ‘Sexual Orientations and Gender Identities (SOGIES)’.”

(It is the most minor of points, but as we are discussing law, let’s be accurate: the acronym is SOGIESC and it stands for Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.)

This paragraph is worrying for a number of reasons. From a social point of view, it attempts to delegitimise the concept of gender identity and turn it into a scare-quoted falsity. From a legal point of view, it seems to be making the argument that gender identity should not be protected, and indeed, that it has been a mistake to rank it as a protected characteristic or a denotation of legal status. It conflates a right to protection of gender identity (on a side note, I disagree with the quasi-legal terminology here too – gender identity can be a protected characteristic, or it can be a recognised legal denotation, but there is no such thing as a ‘right to the protection of gender identity’) with a backslide in women’s rights, which is intellectually dishonest and profoundly false. If there has been an erosion of women’s rights, it is because of the forces of patriarchy and misogyny which work to oppress all women – cis and trans. It is not to do with the availability of legal gender recognition, and I cannot imagine where it could be legitimately argued in human rights law that legal gender recognition, or the protection from discrimination based on gender identity, has affected any gendered right or protection offered to women. 

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. This is particularly clear when, following a misapplication of the Yogyakarta Principles definition, the Declaration states that “the concept of ‘gender identity’ has enabled men who claim a female ‘gender identity’ to assert, in law, policies, and practice, that they are members of the category of women, which is a category based upon sex.” Trans women are, of course, women – not men. However, the Declaration refuses to refer to them as such. This analysis will try to limit its repetition of this transphobic rhetoric, but it is to be noted that this is how the Declaration refers to its targets. It is not subtle. 

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Moving on to the next incorrectly applied IHRL document, the Declaration then attempts to utilise CEDAW General Comment no. 35, on violence against women, to prove a point. However, in a particularly egregious misstep, it attempts to do this by choosing a quote which – in its full form – contradicts the point it is trying to make. 

The Declaration quotes: ““General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention as well as general recommendation No. 33 on women’s access to justice confirms that discrimination against women is inextricably linked to other factors that affect their lives. The Committee’s jurisprudence highlights that these may include…being lesbian.”” 

However, the General Comment itself continues: “…being lesbian, bisexual, transgender or intersex…”

This is just outrageously, indefensibly, intellectually dishonest. Not only is the Declaration attempting to use a piece of CEDAW Committee jurisprudence to further its own ends, it is blatantly mischaracterising the nature of the discriminations acknowledged by that General Comment, which include discrimination based on transgender identity – where is therefore acknowledged by the Committee to be real! Not only that, but General Comment 35 itself, when setting out its definitions of violence against women, states that “The concept of “violence against women”, as defined in general recommendation No. 19 and other international instruments and documents, has place[d] an emphasis on the fact that such violence is gender-based. Accordingly, in the present recommendation, the term “gender-based violence against women” is used as a more precise term that makes explicit the gendered causes and impacts of the violence.” (paragraph 9)

Violence against women is recognised as gender-based. Transgender women are recognised by the CEDAW Committee as women who are affected by this violence and indeed, by intersecting forms of discrimination that flow from this facet of their identity. It is counter to everything expressed by the Committee to claim otherwise.

Likewise, the attempted use of Articles 4, 7, and 10 CEDAW by the Declaration to try to remove trans women from participation in gendered public quotas, political life, and sports, also run counter to modern interpretations of the Convention.

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The next document in attempted use by the Declaration is the UN Declaration on the Elimination of Violence Against Women (UNDEVAW, 1993). The UNDEVAW states that “For the purposes of this Declaration, the term “violence against women” means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women…”. The Declaration, however, makes the unfounded claim that the definition of violence against women in the UNDEVAW is “based on sex and not on ‘gender identity’.” This is clearly contradicted in the wording of the UNDEVAW itself, which recognises violence against women as “gender-based.”

The Declaration goes on to make more assertions regarding CEDAW General Comment 35, including that it requires the collection of “sex-disaggregated data,” which is untrue. The reference made to data disaggregation in the General Comment is as follows: “[states should e]stablish a system to regularly collect, analyse and publish statistical data on the number of complaints about all forms of gender-based violence against women… All data should be disaggregated by type of violence, relationship between the victim/survivor and the perpetrator, and in relation to intersecting forms of discrimination against women and other relevant sociodemographic characteristics, including the age of the victim/survivor.”

The attempted citation in the Declaration, which does not come from an output of the Treaty Bodies or a Convention, is from the “UN Women Gender Equality Glossary,” which is at best an advisory document and essentially auxiliary to the actual jurisprudence of the United Nations.

The use of these points around violence against women is intended to make a case that allowed trans women to self-define as women will disturb both the ability of cis women to access “single-sex” spaces and the ability of states to record accurately the identities of perpetrators of violence. It is clear that the implication here is that trans women are likely to be violent against cis women – again, something which has no cited basis as a claim.

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Two final remarks about the Introduction to the Declaration. One is its odd turn into a brief argument against surrogacy, which it seems to conflate with trans women wishing to be recognised legally as mothers (although it is very unclear on this point). While it is true that CEDAW does affirm the “social significance of maternity,” there is no link whatsoever between a recognition of the capacity to give birth and the need to protect reproductive capacity, and the recognition of trans women as women or their right to refer to themselves as mothers if they have children. This is a purely semantic argument which then veers into the outright bizarre, stating that “[t]he exploitation and commodification of women’s reproductive capacity also underpins medical research which is aimed at enabling men to gestate and give birth to children.” Again, there is no reference for this, which is likely because no possible reference exists for it. It is certainly not a matter of, or for, international human rights law.

It then, to be colloquial, says the quiet part loud: “The inclusion of men who claim a female ‘gender identity’ within the legal categories of woman, of lesbian, and of mother threatens to remove all meaning from these categories, as it constitutes a denial of the biological realities on which the status of being a woman, being a lesbian, and being a mother are based.” This is clearly a call for the denial of recognition to trans women, based on spurious notions of biology and a strange conflation of sex/gender, sexual orientation, and parenthood into apparently ‘legally’ similar classes.

Finally for the Introduction, the Declaration turns its attention to the matter of trans children. In 2013, the UN Committee on the Rights of the Child in General Comment no. 15 on the Right to Health stated that “States parties have an obligation to ensure that children’s health is not undermined as a result of discrimination, which is a significant factor contributing to vulnerability. A number of grounds on which discrimination is proscribed are outlined in article 2 of the Convention…These also include sexual orientation, gender identity and health status, for example HIV status and mental health.” It is thereby understood that trans children should not be discriminated against in healthcare on the basis of their gender identity.

Nevertheless, this is exactly what the Declaration calls for, stating that “[t]he concept of ‘gender identity’ is increasingly used to ‘gender reassign’ children who do not conform to sex stereotypes, or who are diagnosed with gender dysphoria.” The idea that children are being pressured or forced into transition, which is what is implied here, is also uncited, unproven, and not borne out by the facts of increasingly long waiting times for healthcare for trans children in many jurisdictions, including the United Kingdom. 

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The Preamble of the Declaration repeats many of the inaccuracies and uncited claims of the Introduction, therefore the same analyses will not be repeated where they arise. I do wish to make some points regarding the Preamble and the following Articles. Firstly, the opening provision of the Preamble cites a pick-and-mix of international legal sources which do not actually state or add anything relevant to the argument. This is obviously intended to give some legal validity to what follows; it does not. Likewise, the list of international conferences and summits (which, notably, ends in 1995) does not add anything to the argument except window dressing; there is no link offered between these and anything which follows. The Preamble, again, displaying no recognition of the evolution of IHRL or the teleological (contextual or evolving) nature of the interpretation of the Treaties, states that “in the first decades of the United Nations human rights approach there was a clear understanding that discrimination against women was based upon sex.” It is submitted and it has been demonstrated that this understanding has evolved through the actions of the United Nations bodies themselves.

This entire section is written in the style of an international human rights Convention, but do not be taken in by the quasi-legal style – it repeats the same baseless and harmful claims that were demonstrated in the Introduction. For example: “men who claim a female ’gender identity’ assert in law, policies and practice that sexual orientation is based upon ‘gender identity’ rather than sex, and seek to be included in the category of lesbian; and that this results in the erosion of the sex-based human rights of lesbians.” There is, I repeat, no such thing as the “sex-based human rights of lesbians.” Lesbian is a sexual orientation, not a sexed class (such as it is argued that ‘man’ and ‘woman’ are). Lesbians, as a group, do not have specific human rights designated in law. The only thing approaching this is that it is not permissible, for example, to discriminate based on sexual orientation – but there is no specific right conferred on anyone by virtue of being a lesbian that cannot also be claimed by a gay man or a bisexual/queer person.

This is another baseless claim worth highlighting: “organizations that promote the concept of ‘gender identity’ attempt to limit the right to hold and express opinions about ‘gender identity’ by promoting attempts by state agencies, public bodies and private organizations to use sanctions and punishment to compel persons to identify individuals on the basis of ‘gender identity’ rather than sex.” There is no law that I am aware of, and I have cowritten three volumes of a global report on gender recognition law as well as a PhD thesis on international law and gender identity, which attempts to limit the right of anybody to hold opinions about gender identity or impose legal sanctions on any individual or party, public or private, for holding an opinion. Actively participating in hate speech or harassment is, of course, sanctioned by law in many jurisdictions, but unless one is partaking in that sort of activity, that is not a concern.

And another: “the concept of ‘gender identity’ is used to undermine the right of lesbians to define their sexual orientation on the basis of sex, and to assemble and associate on the basis of their common sexual orientation, and without including men who claim to have female ‘gender identities’.” Lesbians do not have a legal right to define their sexual orientation. There are multiple, competing definitions of ‘lesbian’ within the community, and the individual has the right to believe in whichever they choose. They do not, however, have a legal right to proscribe the others. The right of freedom of assembly applies to everyone, including trans women, who are entitled to request entry to a lesbian group if they wish (and to be denied entry to a private group if that is what the group itself desires). There is no human rights breach involved.

Equality law in a domestic jurisdiction, such as the Equality Act 2010 in the UK, covers admittance to “single-sex spaces” such as refuges. It differs across jurisdictions, but as a rule, trans women are allowed into spaces designated as being for women, unless there is a compelling and legitimate reason to the contrary – and even then, proportionate and reasonable accommodation must be made for their protection. To state, as the Declaration does, that “the erasure of sex-specific actions, strategies and policies for women and girls will undermine decades of United Nations work to recognize the importance of women only services in disaster zones, refugee camps, and prisons, and in any context where the use of mixed-sex facilities would be a threat to the safety, dignity and protection of women and girls, and particularly vulnerable women and girls” is false. (It is also, on a side point, a bizarre way to attempt to link the well-worn argument about women in prison to the work of the United Nations in disaster zones.)

The next paragraph of the Preamble makes an ideological claim: “the concept of ‘gender identity’ was developed specifically out of a body of postmodern and ‘queer theory’ in the West and is being disseminated through powerful organizations internationally, including in countries where the term ‘gender’ does not exist in local languages and cannot easily be understood.” Again, no citation or proof is offered of this, nor are these powerful organisations named. There is also a distinct neocolonialist flavour to the claim that the concept of ‘gender’ is being exported to countries where it did not previously exist – particularly because many countries outside of the West have complex and diverse notions of gendered identities which do not correspond to binary sex designations, and in fact, it could be and has been argued elsewhere, including by this author, that the sex/gender binary is in fact a Western imposition on non-Western cultures. 

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Lastly, the Preamble returns to the topic of transgender children. It attempts to use the UN Convention on the Rights of the Child and the Joint General Recommendation of the CEDAW Committee (no 31) and the Committee on the Rights of the Child (no. 18) on harmful practices, to argue that allowing children to access puberty-blocking medications (which is a safe and reversible practice) is in fact a ‘harmful practice’ under this Recommendation. This is the last non-repeated attempted substantive legal claim made in the Declaration, so I will unpack it somewhat.

For context, here is the background definition of a “harmful practice”: “persistent practices and forms of behaviour that are grounded in discrimination on the basis of, among other things, sex, gender and age, in addition to multiple and/or intersecting forms of discrimination that often involve violence and cause physical and/or psychological harm or suffering.” The General Recommendation goes on to state that:

“… practices should meet the following criteria to be regarded as harmful:

(a) They constitute a denial of the dignity and/or integrity of the individual and a violation of the human rights and fundamental freedoms enshrined in the two Conventions; 

(b) They constitute discrimination against women or children and are harmful insofar as they result in negative consequences for them as individuals or groups, including physical, psychological, economic and social harm and/or violence and limitations on their capacity to participate fully in society or develop and reach their full potential;

(c) They are traditional, re-emerging or emerging practices that are prescribed and/or kept in place by social norms that perpetuate male dominance and inequality of women and children, on the basis of sex, gender, age and other intersecting factors;

(d) They are imposed on women and children by family members, community members or society at large, regardless of whether the victim provides, or is able to provide, full, free and informed consent.”

Examples of harmful practices include child marriage or genital cutting. The Declaration attempts to argue that the consensual provision of safe, reversible medication to children falls under the same ambit as practices such as these. This is mostly done by stating repeatedly, and again, without sourcing, referencing, or proffered proof, that transition-related healthcare practices “involve medical interventions that carry a high risk of long-term adverse consequences on the physical and psychological health of children who are not developmentally competent to give full, free and informed consent to such medical interventions.” 

This is intended to be an international document, so the authors must be aware that they are writing outside of a domestic jurisdiction – which is where decisions about medical law are usually made (such as the recent Bell v Tavistock cases in the UK). There are therefore varying standards as to the provision of puberty blockers, from complete restriction, to access based on the capacity to consent of the child. However, the capacity of the child is not a condition taken lightly. Jurisdictions have differing legal standards for determining the capacity to consent to medical treatment – however, the Declaration rides roughshod over legal precedent across multiple jurisdictions by claiming that no child, anywhere, has capacity to consent to puberty blockers. 

Capacity judgments often refer to international human rights law standards, particularly the UN Convention on the Rights of the Child, for relevant principles. There are several provisions which apply when it comes to the provision of medical treatment to children: the best interests of the child (Article 3), the child’s right to life, survival, and development (Article 6), the right to be heard (Article 12), the right to freedom of expression (Article 13), the right to the highest attainable standard of health (Article 24). A brief scan of the UNCRC would show that a blanket designation of children as incapable to consent to medical treatment is incompatible with their rights under IHRL.

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The Articles of the Declaration are also repetitive of many of the misuses of IHRL which have previously been discussed in this post, and do not require further investigation. It would suffice to say that they are nakedly anti-transgender rights and anti-participation of trans persons, and in particular trans women, in public life. 

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This has been a long post which has attempted to argue from IHRL that there is no factual basis for the claims made in the WHRC Declaration, and that they are in this author’s opinion, based on misapplication, incorrect citation, and general misuse of international human rights law sources. In a world where international human rights law has evolved so much on the question of sex/gender that there is now a mandate-holder known as the UN Independent Expert on Sexual Orientation and Gender Identity, it is patently obvious that any attempt to argue that gender identity is an unrecognised or unrecognisable concept is regressive and contrary to current understandings of human rights. 

I will give the last word to the current UN IESOGI, Victor Madrigal Borloz, from his recent report on “The Law of Inclusion” (A/HRC/47/27):

“The notion that there is a gender norm, from which identities and expressions vary or depart, is based on a series of preconceptions that must be challenged if all humankind is to enjoy human rights. Among these misconceptions is the idea that it is a legitimate societal objective that persons adopt roles, forms of expression and behaviours that are considered entitlements or burdens according to their sex assigned at birth. Only by acknowledging the stereotypes, power asymmetries, inequality and fundamental violence that lies at the foundation of this system does the State comply with its obligation to address the violence and discrimination that it fuels, with its harrowing impact on women and girls in every corner of the world, including lesbian, bisexual and trans women; on gay, bisexual and trans persons; on other gender-diverse persons; and on intersex persons.”