Intersex, Outcast – The Limits of Gender at the International Criminal Court

Laura Nacyte joins JiC for this post on the limited conceptualization of gender in the Rome Statute of the International Criminal Court. Laura is an MSc graduate of Global Security from the University of Glasgow where she wrote the dissertation “The Copenhagen School Meets International Law: Has the International Criminal Court Impeded the Securitisation of Sexual and Gender-Based Violence?”. Laura is currently based at the Rape Crisis Centre Glasgow.

A witness gives testimony during proceedings at the International Criminal Court (Image: ICC)

A witness gives testimony during proceedings at the International Criminal Court (Image: ICC)

The adoption of the Rome Statute of the International Criminal Court (ICC) in 1998 was momentous for historically neglected victims of gender-based violence (GBV). It was the first international treaty to codify numerous gender-related offences, including those of a sexual nature. The document enlists rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and other comparable sexual violence, both as crimes against humanity and war crimes. In addition, it proscribes persecution on account of gender.

The ICC’s responsibility to prosecute GBV was further reinforced by incorporating gender elements into the Statute’s procedural architecture. The Court is obliged to apply law without any adverse distinction founded on gender. The latter has also to be taken into account to protect victims and witnesses.

Intuitively, engagement with the concept of gender is required to comprehend gender-specific provisions. Article 7(3) of the Rome Statute provides the following definition:

For the purpose of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.

Much commentary was devoted to this vexed provision. The debate has revolved around the tension between the deterministic (‘the two sexes’) and sociological (‘within the context of society’) dimensions of the definition of ‘gender’. With questions of sexual orientation and gender identity at stake, a status of lesbian, gay, bisexual and transgender (LGBT) persons has been in focus. Yet the first, biological part of the provision received surprisingly short shrift. Insistent upon a binary sex classification, it is overtly exclusive of intersex individuals.

Formerly known as hermaphrodites, intersex people are neither entirely male nor female. Their anatomy reveals the incongruence of sex characteristics — chromosomal, hormonal, gonadal or genital — that can result into any of approximately twenty intersex conditions. Under the law of certain ICC member states — for instance, Germany, Australia and Malta — the sex of these individuals is ‘indeterminate’ or ‘unspecified’.

In fact, not all intersex conditions complicate sex determination. By way of example, men with Klinefelter syndrome possess XXY chromosomes instead of the typical XY sex chromosomes, or male chromosomes. They are often not even aware of this genetic disorder, since no obvious symptoms are present. (But their different physical development may manifest through small testes and penis, decreased body and facial hair, and enlarged breast tissue.)

Other conditions are more troubling and deserve an adequate legal acknowledgment. For instance, infants with complete androgen insensitivity syndrome are born with XY sex chromosomes, or male chromosomes, but possess female external genitalia. Categorised as females accordingly, they nevertheless fail to menstruate at puberty and remain infertile. Similarly, genetic males with 5-alpha-reductase deficiency have XY sex chromosomes and female external genitalia, and are usually raised as girls. During puberty, however, their physical appearance starts to display male characteristics, including increased muscle mass, deeper voice, and development of penis. Around half of these individuals eventually migrate to male gender role.

Whilst drafting Article 7(3), certain parties — Arab states and Holy See in particular — were resolute in cementing the duality of sexes. Curiously, however, the resulting denial of intersexuality occurred not due to the preoccupation with the latter, but primarily because of the bias towards LGBT persons.

Religious states demanded a reference to the two sexes in Article 7(3) worrying that its absence might implicate the multiplication of genders, or recognition of LGBT subjects. Valerie Oosterveld, a Canadian delegate to the Rome Statute negotiations, recalls that those states “wanted ‘gender’ to be tethered as closely as possible to biological sex because they felt this would help to instantiate heteronormativity.” To prevent derogation from the provision, the second sentence was added, which stipulates that ‘gender’ does not have any than the agreed meaning. While superfluous, it reemphasises that gender is constituted of only the ‘two sexes, male and female’.

Although the phrase ‘within the context of society’ may have broadened the concept of gender to cover LGBT persons, that seems irrelevant for intersex individuals. Indeed, the phrase is intended to encapsulate sociocultural assumptions attached to gender. Amongst these are gender roles and inequalities, as well as sexual orientation. Consideration of social factors enables the ICC to analyse GBV as a complex and multifaceted phenomenon. Not only does it allow the Court to expose socially constructed power asymmetries underlying male sexual violence against women. (Here, the biological presumptions of men’s physical strength and virility that are implicit in the reference of ‘the two sexes’ lose ground.) It also elucidates sexual assault on men as a means to emasculate and prove their failure to defend — in other words, to take away their gender role. Gender expectations inform GBV against LGBT people, who deviate from traditional norms of heterosexuality or an identity prescribed by sex, as well.

The ICC is yet to provide a holistic interpretation of Article 7(3). Specifically, the Court has to clarify its stance on LGBT persons. Nevertheless, one should be mindful that sex dualism is foundational to the definition of ‘gender’; a sociological component is supplementary. As intersex people fail to satisfy the foremost criterion of Article 7(3) — to be either male or female — they appear as the only group entirely denied legal protection on the matter in hand.

Erasure of intersex subjects is evinced through comparison with transgender people, regardless of the two often being subsumed. Transgender people encompass transvestites, drag queens or kings, gender-variant individuals, and transsexuals; still, their biological makeup does not by default prohibit them from statutory rights. Typically, the sex assigned to transgender individuals matches that of male or female, but it is not concurrent with their gender identity. The recognition of self-identification is consequently contingent upon the ICC’s interpretation of a social context within Article 7(3). Endorsed in an open manner, Article 7(3) could certainly accommodate transgender people.

It is a mere irony that those opposing the term ‘gender’ in the Rome Statute in defence of a natural order were its fiercest antagonists. Consciously or not, the Arab parties and Holy See concealed a range of biological traits that did not allow the ICC to place someone within a discrete category of male or female. Having reproduced an inaccurate two-sex model, the Rome Statute and Article 7(3) therein is nothing but a testament of social engineering.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Gender, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Rome Statute. Bookmark the permalink.

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