Doing justice to gender diversity: Narratives of progress and the limits of law

Abstract

The core question of my doctoral thesis asks what is meant by the recognition of gender in law, and what effects the emergence of a multiplicity of gender identities onto international human rights law forums has had on legal systems at both domestic and international levels. It also asks what impact this has had on the gendered subjects of those legal systems.

To this end, it explores the history of gender-variant subjectivity in four different legal systems: the jurisprudence of the European Court of Human Rights; the Concluding Observations of the United Nations human rights bodies and the UN inter-state Universal Periodic review; the domestic legal system of Ireland; and the domestic legal system of India. Although diverse, each of these systems has produced valuable insights into the creation, maintenance, and disassembly of gendered subjects in law.

The thesis interrogates the gender norms present in each legal system and the manner in which those norms have been troubled by the creation of laws recognising variant or multiple gender identities. Although such histories are frequently presented as pure narratives of progress from a repressive past to an idealised present, it also queries to what extent legal recognition of gender-variant identities can bring about substantive equality for these persons.

The analysis in this thesis is informed by theorists from a variety of sociolegal backgrounds. In particular, it draws on gender and law theorists such as Foucault, Butler, and Kapur in describing the formation of gender categories in law and the normative operation of the legal system. However, it also focuses a critical postcolonial theory lens on the interaction of domestic legal systems with international human rights law, seeking to round out this inter/national analysis by describing the differing factors in play in the development of legal gender recognition.