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International Journal of Transgenderism

ISSN: 1553-2739 (Print) 1434-4599 (Online) Journal homepage: http://www.tandfonline.com/loi/wijt20

To What Extent Have the Rights of Transgender


People Been Underrealized in Comparison to
the Rights of Lesbian, Gay, Bisexual, and Queer/
Questioning People in the United Kingdom?

Thomas Stocks

To cite this article: Thomas Stocks (2015) To What Extent Have the Rights of Transgender
People Been Underrealized in Comparison to the Rights of Lesbian, Gay, Bisexual, and Queer/
Questioning People in the United Kingdom?, International Journal of Transgenderism, 16:1, 1-35,
DOI: 10.1080/15532739.2015.1007198

To link to this article: https://doi.org/10.1080/15532739.2015.1007198

Published online: 16 Jul 2015.

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International Journal of Transgenderism, 16:1–35, 2015
Copyright Ó Taylor & Francis Group, LLC
ISSN: 1553-2739 print / 1434-4599 online
DOI: 10.1080/15532739.2015.1007198

To What Extent Have the Rights of Transgender People


Been Underrealized in Comparison to the Rights of
Lesbian, Gay, Bisexual, and Queer/Questioning People in
the United Kingdom?
Thomas Stocks

ABSTRACT. This article aims to consider how LGBTC people have been excluded from human
rights practice in the United Kingdom using data from a survey based on the Yogyakarta Principles
(YPs). This article proceeds according to the following hypotheses: that LGBTC rights in the UK
have been underrealised, that transgender people have been particularly at risk of human rights
abuses in the UK in comparison to other people included under the LGBTC banner, and that
transgender people will therefore have experienced a wider array of rights abuses more consistently.
This article also hypothesizes that transgender people that inhabit multiple spaces of citizenship
outside of heteronormativity will be at a further increased risk of human rights abuses. These
hypotheses are based on a literature review that demonstrates the imbalanced and slow progression of
LGBTC rights that has, particularly in the UK, favored the progression of sexual rights over
transgender rights and the maintenance of heteronormativity which allows for greater chances of
abuses of the rights of LGBTC people in the private and public arenas. These hypotheses will be
considered through an analysis of the frequency of positive responses to survey questions that
indicate a form of human rights abuse according to the YPs.

KEYWORDS. Gay rights, human rights, lesbian rights, LGBT, LGBT rights, right, transgender

This article aims to consider how LGBTC1 have been particularly problematic; and how
people have been excluded from human rights the progression of sexual rights and gender
practice in the UK using data from a survey rights has differed. This section informs the
based on the Yogyakarta Principles (YPs). In hypothesis that LGBTC people remain at risk
the literature review, this article will establish of human rights abuses in the UK and that
the extent to which LGBTC rights have histori- LGBTC rights remain underrealized. The liter-
cally been, and remain, underrealized in the ature review will then consider certain theoreti-
United Nations (UN), the European Union cal points: First, this section will look at the
(EU), and the UK; the types of abuses LGBTC concept of heteronormativity in greater detail,
people are most at risk of; why LGBTC rights before considering whether or not transgender

Thomas Stocks was affiliated with the University of Sheffield, Sheffield, United Kingdom, at the time of
the study, and is currently affiliated with Oxford Brookes University, Oxford, United Kingdom, and the
University of Surrey in Surrey, United Kingdom.
Address correspondence to Thomas Stocks, 10 Angerford Avenue, Norton Lees, Sheffield, S8 9BG,
United Kingdom. E-mail: thomasvastocks@gmail.com
1
2 INTERNATIONAL JOURNAL OF TRANSGENDERISM

people can be considered transgressive of het- conceptualization of LGBTC rights was indica-
eronormativity; and second, this section will tive of the absence of LGBTC people from pre-
look at the contentions that universalism sup- vious formulations of human rights and,
ports heteronormativity and that, therefore, the therefore, previous conceptions of the human.
current legal and theoretical frameworks Narayan (2006, p. 313) further argues that while
offered by institutions in the UN, EU, and UK homosexuality has and will always exist, “gay”
for the support of human rights cannot incorpo- as a political construct emerged in a subversive
rate LGBTC rights effectively. This section is form in response to the deprivation of human
essential, as the primary text used in the crea- rights based on sexual orientation. The basis of
tion of the survey, the YPs, is designed to com- this denial of rights is derived from the same
plement existing human rights norms and to conception of the human that enabled the depri-
support universalism. This article supports the vation of human rights based on sex, gender
progression of universal human rights norms. identity, and disability: normative prescriptions
However, in order to maximize inclusivity and of how humans ought to be (Currah & Minter,
scope, the YPs, and the survey allow for and 2000, p. 38). The LGBTC rights movement is
support the transgression of traditional sexual grounded in the idea that LGBTC rights are not
and gender binaries apparently supported by special rights removed from “normal” human
post-Kantian universalist thought. This section rights norms but that the heterosexual bias of
then aims to maximize the theoretical coher- such “normal” human rights norms needs to be
ence of this article. Furthermore, this section recognized and challenged (Miller, Rosga, &
helps to support the second hypothesis that Satterthwaite, 1995, p. 437).
transgender people have been more at risk of Initial movements to secure LGBTC rights
human rights abuses in the UK than other mem- did not employ human rights rhetoric in their
bers of the LGBTC community and that the approach. Legal reform in favor of LGBTC
experience of rights violations will fundamen- rights came slowly, despite the creation of
tally differ between transgender people and cis- organizations in the 1950s that supported the
gender people. This article will then discuss the decriminalization of same-sex relationships.
hypotheses in more detail before explaining While the Wolfenden Report, which advocated
the research methodology. I will then analyze the decriminalization of male homosexuality in
the collected data from the survey with refer- England and Wales, employed concepts familiar
ence to the extant literature and the hypotheses to rights discourses such as citizenship, privacy,
before examining what conclusions can be and individual freedom of choice, it did not
drawn from this research. The article aims to frame these in reference to the realization of
consider the following hypotheses: that human rights, despite the rise in rights discourse
LGBTC rights in the UK have been underreal- particularly at an international level (Kollman &
ized, that transgender people have been particu- Waites, 2009, p. 4). Similarly, the liberation
larly at risk of human rights abuses in the UK in movements that formed in the United States and
comparison to other people included under the in the UK following the Stonewall riots were
LGBTC banner, that transgender people will tied to demands of collective equality and liber-
therefore have experienced a wider array of ation; the individualistic approach of rights was
rights abuses more consistently, and that trans- rejected. This was reflected in the development
gender people that inhabit multiple spaces of of gay liberation manifestos. It was not until the
citizenship outside of heteronormativity will be 1980s that the language of human rights was
at an even greater risk of human rights abuses. properly incorporated into the gay political lexi-
con (Kollman & Waites, 2009, p. 4).
LITERATURE REVIEW LGBTC people have historically been, and
continue to be, at particular risk of human
Background Information rights abuses globally (Marks, 2006, p. 33).
This has manifested itself in variety of ways:
As noted by Kollman and Waites (2009, p. 2) (a) same-sex relationships are criminalized in
and Wilkinson and Kirey (2010, p. 486), the over 82 nations, with punishments including
T. Stocks 3

humiliation, hard labor, torture, confinement, sexuality is well covered through other funda-
blackmail, and death (Marks, 2006, p. 34; Nar- mental rights. Graupner, for example, argues
ayan, 2006, p. 314), and (b) LGBTC people are that “as a matter of course fundamental rights
at greater risk of socioeconomic human rights do cover sexual life” (Graupner, 2005, p. 110),
violations such as unfair dismissal, denial of and that additional rights such as the freedom
employment, difficultly accessing welfare pro- of expression; the freedom to freely associate;
visions, increased risk of homelessness, and and—as further noted by Graupner and Tah-
difficulty in accessing related gender-appropri- mindjis—the right not be treated in a cruel,
ate services (O’Flaherty & Fisher, 2008, p. inhuman, or degrading manner, the right to
212) as well as violence, pervasive interfer- employment, the right to freedom of thought,
ences, and reduced privacy and personal lib- conscience and religion, the right to marry, the
erty, including the forced suppression of their right to equality before the law, and the right to
identity and person by public officials or by the highest attainable standard of physical and
family members (O’Flaherty & Fisher, 2008, mental health are all established human rights
pp. 208–210) and the medicalization of their norms applicable to the protection of the human
identity resulting in acts such as psychosurgery, rights of the LGBTC community (Graupner,
hormonal injection, electroshock therapy, che- 2005, p. 110 and Tahmindjis, 2005, p. 11). De
motherapy (Miller et al. 1995, p. 430), and jure, people in the LGBTC community are cov-
involuntary “correctional” surgery for intersex ered through the expression of the universal
people (O’Flaherty & Fisher, 2008, p. 212), to applicability of rights in the first article of the
name but a few examples of the types of human Universal Declaration of Human Rights; how-
rights violations to which LGBTC people are ever, as current formulations of human rights
particularly at risk. Exclusion from human norms are not designed to explicitly include
rights protection is amplified by legal systems LGBTC people, LGBTC rights are de facto
that have evolved to ground “the human” to excluded and dehumanized despite the initial
gender binary, heteronormative definitions of breadth of the Declaration (Tahmindjis, 2005,
sex, gender, and sexuality that are far from p. 10). As Cornwall notes: “LGBT rights com-
inclusive (Currah & Minter, 2000, p. 41-42). pletes the human rights framework—it con-
Modern LGBTC movements have focused cerns the promotions of the well-being of
primarily on the right to equality, privacy, and people as whole people—not just in relation to
sexual self-determination and self-expression their utility or capacities, their economic or
(Narayan, 2006, p. 319). More recently, and social needs or their civil and political rights,
due in part to increased prominence of trans- but in terms of all that makes us fully human”
gender issues, the LGBTC rights movement (Cornwall, Correa, & Jolly, 2008, p. 18). The
has expanded and now also often focuses on Yogyakarta Principles are the foremost articu-
issues of citizenship such as equal marriage lation of LGBTC rights, and while the princi-
laws, birth certificate change and other forms ples have not been incorporated into the UK’s
of official recognition of gender identities or human rights paradigm, they provide an excel-
sexual orientation, and the right to adopt, foster, lent framework for scrutiny of LGBTC rights
and parent (Monro, 2003, pp. 436–437). As in the UK and the construction of the survey.
Monro (2003) notes, other areas have included
the freedom from specific forms of medical LGBTC Rights and the United Nations
injustices, as noted above, and access to appro-
priate medical care. Inclusion of intersex rights As noted above, written human rights law
expands this further to include cessation of gen- regarding sexuality and gender identity is
der assignment surgery on infants and the scarce. Sexual rights are only referenced in the
option to have intersex as a civil identity Convention on the Rights of the Child, which
(Monro, 2003, p. 437). contained a limited reference to sexual rights
Human rights theorists and practitioners through its section on sexual exploitation
have previously attempted to argue that (Graupner, 2005, p. 108). The first speaker to
4 INTERNATIONAL JOURNAL OF TRANSGENDERISM

introduce LGBTC issues at the UN was Anne- tool for LGBTC rights activists—although it is
lien Kappeyne van de Coppello, who advocated a limited tool as it is only enforceable in states
lesbian rights in a speech to the third UN World that have signed the optional protocol (Waites,
Conference on Women; however, the first 2009, p. 140). Despite this, Narayan argues that
openly gay person to speak in the UN did not the ICCPR remains the most effective instru-
do so until 1992, and faced “open hostility to ment for LGBTC activism in human rights
his remarks” (Sanders, 1996, p. 67), to the UN (Narayan, 2006, pp. 330–331).
Sub-Commission on the Prevention of Discrim- As noted above, feminist activists have con-
ination and Protection of Minorities. Argu- sistently advocated lesbian rights at the UN,
ments against greater inclusion of LGBTC emphasizing such rights to be an integral part
people in the human rights regime are fre- of the human rights of all women, whether they
quently posited by the Holy See and the Orga- are lesbian or not (Swiebel, 2009, p. 25). These
nisation of Islamic Conference, most notably efforts were the first to relate the issues of gen-
against the Brazilian resolution in the UN Com- der rights and sexual rights at the UN level, and
mission on Human Rights, which was dropped this was a markedly different approach in com-
in 2005 (O’Flaherty & Fisher, 2008, p. 229– parison to the approach taken by male activists,
230; Saiz, 2004, p. 51) on the grounds that sex- who preferred to appeal to established human
ual orientation is an undefined term and not a rights norms rather than tie sexual orientation
human rights issue but a social and cultural to the ongoing debate concerning sexual rights
issue (Siaz, 2004, p. 12). Sexual orientation such as the freedom of choice and sexual auton-
was first mentioned in a UN Commission on omy (Swiebel, 2009, p. 25). Similarly, Miller
Human Rights resolution on extrajudicial, sum- et al. (1995, p. 431) extended this connection
mary, or arbitrary executions in 2000, but sub- to health rights, and the Human Rights Com-
sequent UN world conferences, such as mittee; the Committee on Economic, Social
Beijing, did not address the issue (Siaz, 2004, and Cultural Rights (CESCR); and the Com-
p. 51). In 2006, the United States, China, mittee on the Elimination of Discrimination
Sudan, and Cuba aligned to prevent LGBTC against Women (CEDAW) have consistently
organizations from achieving consultative sta- appealed for the repeal of laws that criminalize
tus in the UN (Narayan, 2006, p. 320). May same-sex relations employing similar rhetoric
2013 saw the UN Committee on Non-Govern- (Siaz, 2004, p. 6). The Committee on the Rights
mental Organizations give in to pressure, pri- of the Child furthered the connection between
marily from the UN Economic and Social physical and mental health rights and sexual
Council, and recommend consultative status rights, pushing for access to appropriate infor-
for two LGBT organizations for the first time mation, support, and protection to enable the
since 2008; the United States supported this realization of their sexual orientation and gen-
decision (ISHR, 2013). der identity; this helped to fight arguments
The most prominent victory in favor of sex- based on “predatory homosexuality” that pos-
ual rights came in 1994, however, through Too- ited that the realization of LGBTC rights would
nen v. Australia, when the UN Human Rights be contrary to the realization of the rights of the
Committee found that Tasmania’s new law child (Siaz, 2004, p. 7).
criminalizing same-sex sexual activity violated While there has been some progress,
international human rights norms (Narayan, although slow and hard won, transgender rights
2006, p. 320). Furthermore, this case ruled that issues in particular have been more absent from
Article 2(1) of the International Covenant on human rights discourse in the UN despite the
Civil and Political Rights (ICCPR) can be inter- creation of the International Bill of Gender
preted to include nondiscrimination based on Rights in the United States in 1996 and the for-
sexual identity through its clause on “sex” mation of other movements globally to increase
when applied in conjunction with Article 17, the recognition of transgender rights. Policies
which articulates the right to privacy, setting of gender-mainstreaming had potential for the
the precedent for the ICCPR to be used as a consideration of transgender rights but instead
T. Stocks 5

used gender in reference to sex and focused issues. The International Lesbian and Gay
only, albeit nobly, on the realization of wom- Association (ILGA) was founded in 1978 but
en’s rights (Waites, 2009, p. 141). As Narayan did not gain access to the EU until the 1990s,
notes, through the section relating to gender for example (Swiebel, 2009, p. 19). The early
discrimination, the UN Charter establishes the 1990s saw a proliferation of LGBTC rights
UN as being capable of providing protection organizations and the strengthening of their
both to sexual and gender minorities as dis- collective international presence; this was in
crimination based on the transgression of gen- part in response to failed LGBTC cases at the
der norms is still gender discrimination European Court of Human Rights (Kollman &
(Narayan, 2006, p. 325). However, in practice, Waites, 2009, p. 4). Input from ILGA was
gender is used synonymously with sex. essential in the formulation and adoption of the
second report on gay and lesbian rights in
LGBTC Rights and the European Union 1994, which helped mainstream the issue, lead-
ing to the recommendation of a new antidis-
As Walker (2001) notes, LGBTC rights acti- crimination clause in 1996, adopted in 1997
vists have generally been more successful in (Swiebel, 2009, p. 22). As Miller et al. (1995,
the EU, although much of the success has again p. 438) argues, the concept that LGBTC rights
been primarily focused on lesbian and gay are an integral and fundamental aspect of
issues relating to privacy, with less focus on human rights is most widely accepted in
transgender issues or issues of equality or fam- Europe, particularly in relation to the rights to
ily life. Bulgaria, Estonia, Hungary, Cyprus, privacy and nondiscrimination.
Lithuania, and Romania had discriminatory Dudgeon v. United Kingdom was one of the
provisions in their penal codes until 2004, most important events in the history of LGBTC
when they were removed due to pressure from rights at the European level, where Jeffrey
the EU. Swiebel (2009, p. 24) argues that this Dudgeon challenged Northern Ireland’s law
was the first time LGBTC rights were practi- that criminalized same-sex relations in 1975
cally and formally introduced as human rights (the UK had decriminalized homosexuality in
in the EU, and now absence of discriminatory 1967) in the European Court of Human Rights
legislation against homosexuals is a precondi- (ECHR). The court ruled that it violated
tion for admission to the EU and the Council of Dudgeon’s right to privacy, setting an essential
Europe, where such provisions have been precedent for future approaches to LBGTC
repeatedly described as “especially odious” rights in the EU and cementing the idea of
(Graupner, 2005, p. 117). In 2008, following using existing and well-established human
extensive lobbying from the European Parlia- rights norms for addressing LGBTC rights
ment and LGBTC NGOs, the European Com- issues (Helfer, 1990, p. 1045; Sanders, 1996, p.
mission introduced a comprehensive 79. However, support with the European Court
antidiscrimination directive to extend EU anti- did not advance beyond the cases of Dudgeon
discrimination legislation developed primarily and Norris (a similar case against the Republic
to tackle racial discrimination and sex discrimi- of Ireland) until the late 1990s (Helfer, 1990, p.
nation to apply to religion or belief, disability, 1045), where two new cases against the UK
age, and sexual orientation (Swiebel, 2009, were introduced: Sutherland v. United King-
p. 23). dom and Brown et al. v. United Kingdom,
LGBTC rights issues were first introduced to regarding equal age of consent and assault con-
the EU agenda in the early 1980s, preceding the victions for homosexual sadomasochistic activ-
adoption of the Sqarcuialupi Report in 1984, ity, respectively (Sanders, 1996, p. 80).
developed by the European Commission, which Sutherland was successful; Brown was not.
recommended proposals to combat homosexual The precedent set by Dudgeon has been
discrimination in the workplace (Swiebel, reaffirmed by the EU’s approach to sexuality
2009, p. 22). However, it was not until the repeatedly, and the ECHR has consistently
1990s when the EU really began to address the upheld complaints against parties that
6 INTERNATIONAL JOURNAL OF TRANSGENDERISM

criminalize same-sex relations based on the according to the heteronormative criteria


right to privacy (Johnson, 2010, p. 75); how- employed by the ECHR, which has the poten-
ever, Graupner argues that the right to the tial to be damaging as well as beneficial to a
respect of one’s private life implies the right case. This issue will be discussed in more
to personal development, free expression, and detail in relation to heteronormativity and
the development of one’s personality and “to human rights in the sections Constructing
establish and develop relationships with other LGBTC Rights and Heteronormativity and
human beings especially in the emotional Human Rights.
field for the development and fulfillment of In 1994, the European Court of Justice ruled
one’s own personality” (Graupner, 2005, p. that in the case of P. v. S. that discrimination
113). However, the right to private manifesta- toward a transgender person because of their
tions of one’s sexuality does not necessarily gender identity constitutes sex discrimination,
entail the above rights—and is more problem- extending the protection offered by the court
atic than Graupner implies. Such an approach beyond the right to privacy that was estab-
contributes to the social narrative of homo- lished to be applicable to gender identity dis-
sexuality as problematic, and as Johnson crimination in 1992 when the Court ruled that
notes, “antithetical to the common good of a state must issue new documents indicating
‘others’” (Johnson, 2010, p. 77), and pro- the individual’s “new” gender in order to
motes a divisive construction of the accept- uphold that person’s right to privacy regarding
able homosexual, one that contributes to the the disclosure of the fact that they are trans-
heteronormative status quo, and the unaccept- gender (Graupner, 2005, p. 119; Swiebel,
able homosexual, and one that transgresses 2009, p. 25). States were not required to alter
this status quo and allows the “leakage of birth certificates or to allow marriage to a per-
homosexuality into the public sphere” (John- son of the individual’s original gender until
son, 2010, p. 77). This polarization has been 2003, however (Graupner, 2005, p. 119), and
extended to cover transgender people too (see transgender people were covered by antidis-
Lane, 2009, p. 138; Monro, 2003, p. 473). As crimination employment provisions in 2000 in
Johnson further notes, while the framework KB v. NHS Trust Pensions Agency and Others
employed by the EU that recognizes the right (Bell, 2012, pp. 129–130) in which it was
to maintain homosexuality only as a private decided that the decision to withhold
manifestation has afforded some advances in survivor’s pension to the claimant on the basis
LGBTC rights, the framework itself is inher- that the claimant and their partner were unable
ently problematic and legitimizes potential to marry as their partner was transgender con-
discrimination; the UK, for example, intro- stituted unlawful discrimination (Bell, 2012,
duced specific measures to control public pp. 129–130). Familial rights, however, were
homosexual sexual activity (Johnson, 2010, not extended beyond employment and welfare
pp. 81–82). Similarly, this has led to inconsis- discrimination to include legal recognition as
tencies in rulings at the ECHR, where being a family, as in X, Y & Z v. United Kingdom, or
“in the closet” or “out” changes the way in the right to marry, where the ECHR has con-
which one’s homosexuality is interpreted; in sistently upheld that state’s decision to allow
A.D.T. v. United Kingdom, the claimant’s and recognize marriage based strictly on het-
position of not revealing that their homosexu- eronormative biological sexual and gender
ality functioned as proof of the private nature identities is legitimate and does not constitute
of their actions, which worked in favor of the a human rights violation (as in Cossey v.
claimant, whereas in Smith and Grady v. United Kingdom and Sheffield and Horsham v.
United Kingdom, the claimant’s success United Kingdom [Tahmindjis, 2005, p. 17]).
relied on the fact that they were openly However, as Bell (2012, p. 131) notes, EU
homosexual (Johnson, 2010, pp. 85–86). legislators have typically remained cautious
While both were successful cases, they relied in their response to case law. In 2006, the
on an interpretation of their sexuality Recast Gender Directive repealed much of the
T. Stocks 7

related existing legislation and consolidated in targets of persistent discrimination that ranges
into the one instrument (Bell, 2012, p. 131). from media ridicule to violence involved in
hate crimes.
LGBTC Rights And The United Kingdom In Goodwin & I. v. United Kingdom, the
ECHR ruled that the failure of the UK govern-
As Alan Ryan demonstrates, initial antidis- ment to alter the birth certificates of transgen-
crimination efforts regarding homosexuality in der people and allow them to marry in their
Britain were not conceived of in terms of chosen gender was in violation of the European
rights; rather it was argued that such a ban was Convention on Human Rights (Hines, 2009,
unenforceable and disproportionately affected p. 91). This case was particularly significant, as
those unfortunate enough to be caught (Ryan, it enabled the development of the GRA and
as cited in Nash, 2006, p. 338). The concept of invalidated the precedent set by Corbett v. Cor-
“sexual orientation” was initially introduced bett in which UK courts ruled that the marriage
into UK law through rulings of the ECHR and to a transgender woman was not valid and
also through EU law (Waites, 2009, p. 144); therefore could not be dissolved, as the individ-
however, as Hines (2009, p. 87) notes, in 1998 ual was male at birth. This enabled several sim-
the Human Rights Act, which contained ilar UK rulings that did not separate gender and
articles that encoded the human rights norms of sex assigned at birth; this was in contradiction
respect for private and family life, the rights to to the position of the ECHR, which, even when
marry and found a family, and the prohibition ruling against transgender claimants, demon-
of discrimination, lead to increased movement strated a greater understanding of the fluidity of
toward the realization of LGBTC rights in the gender, which allowed for greater legal flexibil-
UK, in particular, the Sexual Offences Act of ity (Hines, 2009, p. 91).
2000, which equalized the age of consent for As Monro (2003, p. 441) demonstrates, the
homosexual and heterosexual relations; the term transgender is, in the UK, taken practi-
Adoptions and Children Act of 2002, which cally to mean postoperative transsexuals and
enabled same-sex couples to adopt; the Gender transsexuals who are waiting to undergo surgi-
Recognition Act of 2004 (GRA), which cal and hormonal gender reassignment, and,
allowed transgender people to change their therefore, a large section of the people gener-
birth certificates and marry provided that the ally included under the transgender umbrella
marriage was heterosexual according to their are excluded from the protection afforded to
chosen gender; the Civil Partnership Act of transgender people by the UK. Monro (2003,
2004 (CPA), which introduced civil partner- p. 437) further notes that this issue is greater in
ships for same-sex couples; and the Equality the UK than other Western nations that have
Act of 2006, which illegalized discrimination comparable LGBTC rights records and postu-
in the workplace based on sexual orientation lates that only minimally disruptive forms of
and created the Commission for Equality and transgender identity that conform to expected
Human Rights in 2007 (Hines, 2009, p. 87; gender and sexual binary norms are considered
Waites, 2009, p. 144). Monro (2003, p. 441) to be legitimate in the UK (Monro, 2003,
notes the impact of the New Labour gov- p. 441). Hines further notes the irony of the
ernment’s efforts to emphasize the inclusion of gender binary model employed by the GRA, an
marginalized communities, which allowed for act that was designed specifically to address the
a greater public space for LGBTC issues, par- rights of transgender people (Hines, 2009, p.
ticularly transgender issues, in the UK. As 94) and that stipulates that the CPA and the
demonstrated above, however, much of the GRA are copositioned in their codification of a
rights discussion regarding LGBTC people in heterosexual/homosexual binary and the
the UK occurred through the European courts. “connective” (Hines, 2009, p. 91) relationship
Tee and Hegarty (2006, p. 70), however, dem- of gender and sexuality.
onstrate that in the UK transgender people It is worth noting two points here: first, that
have historically been, and continue to be, the progression of transgender rights has
8 INTERNATIONAL JOURNAL OF TRANSGENDERISM

occurred more slowly than sexual rights and, such as the right to a private life and the right
second, that transgender issues employed rights to a family, for example, which have gendered
rhetoric, methods, and legal routes much less implications (Kollman & Waites, 2009, p. 7).
frequently and were instead subsumed within However, the human rights regime is a fluid
existing sex discrimination legislation that, by entity capable of evolution, and, as demon-
necessity, reinforces gender binary approaches strated above, the human rights regime is
and therefore axiomatically fails to interact evolving, particularly in relation to LGBTC
with, or address, transgender rights effectively. rights. The poststructuralism of queer theory
Transgender people are currently, therefore, suggests the impossibility of moving beyond
only humanized through their ability to learn to conceptions of sexuality as heterosexist and
conform and present according to legislation binary in law (Namaste, 1994, p. 224); the
and are only afforded human rights accordingly development of the YPs and the Declaration of
(Erni, 2013, p. 138). These sections, through Montreal, however, suggest otherwise.
their exploration of the legal and political his- The YPs were developed in 2006 in an
tory of LGBTC rights at the global, European, attempt to create a single, comprehensive con-
and regional levels, have sought to demonstrate vention establishing the rights of LGBTC peo-
that the progression of LGBTC rights has been ple (Miller et al. 1995, p. 440). The YPs were
slow, uneven, and arduous and that, particularly developed by leading human rights experts in
in comparison to other areas of antidiscrimina- Yogyakarta, Indonesia, and outline interna-
tion and human rights practice, they remain tional principles that relate to gender identity
under-realized and problematic. and sexual orientation. They “promise a differ-
ent future where all people born free and equal
Constructing LGBTC Rights in dignity and rights can fulfill that precious
birthright” (Yogyakarta Principles, 2006) and
As Waites notes (2009, p. 137), the terms have 29 signatories, including former UN High
sexual orientation and gender identity have Commissioner for Human Rights Mary Robin-
become essential in the critiques of LGBTC son (Kollman & Waites, 2009, p. 5). Their uni-
rights nongovernmental organizations (NGOs) versalism is well established, and they are
of human rights discourse and practice and are designed to achieve maximum inclusivity by
central to both the Yogyakarta Principles (YPs) avoiding causal implications (Chang, 2003, p9.
and the Declaration of Montreal, which conse- 666–667); gender identity in the YPs refers to
quently secured their use in wider debates relat-
ing to, for example, cultural diversity and [. . .] each person’s deeply felt internal
globalization and anywhere where sexual poli- and individual experience of gender,
tics is important. Fried (2004) notes the com- which may or may not correspond with
plexity and difficulties in application of these the sex assigned at birth, including the
terms by stating, “Sexuality is understood to be personal sense of the body (which may
composed of sexual identity and orientation, involve, if freely chosen, modification of
gender identity, sexual desire, and sexual prac- bodily appearance or function by medical,
tices, which together constitute an individual’s surgical or other means) and other expres-
sexual ‘subjectivity’ in society” (p. 274). Koll- sions of gender, including dress, speech
man and Waites (2009, p. 7) argue that one of and mannerisms. (Understanding, Yogya-
the most problematic consequences of current karta Principles, 2006)
formulations of human rights norms and their
relationship to LGBTC rights is the avoidance And sexuality in the YPs refers to
of the term sexuality as an inclusive and more
comprehensive category through which to [. . .] each person’s capacity for profound
address the issues. Certainly, current human emotional, affectional and sexual attraction
rights formulations are problematic, and femi- to, and intimate and sexual relations with,
nist authors have addressed issues with rights individuals of a different gender or the same
T. Stocks 9

gender or more than one gender. (Under- led to the development of queer theory that
standing, Yogyakarta Principles, 2006) advocated the deconstruction of social forces
and power relations that defined and created
As Waites (2009, p. 148) notes, the inclusion homosexuality as a juxtaposition of normalcy,
of gender identity into the YPs was not unprob- therefore rejecting a political civil rights model
lematic, and many at the conference preferred as insufficiently radical; feminist and Afro-
the YPs to concentrate solely on sexuality. The American civil rights models were seen to
YPs emphasize the experience of gender, in advocate integration with, rather than decon-
addition to their expressions of an internal struction of, existing power relations (Ball,
“essential” (Waites, 2009, p. 148) gender. This 1999, p. 273). This approach shifted the object
allows a wider scope of inclusivity and incor- of analysis from the marginalized (LGBTC
porates gender fluidity, which constitutes an people, in this case) to the privileged (hetero-
individual experience of gender. sexuals and cis-gender people), allowing for
The YPs are designed explicitly to comple- the theorization of heteronormativity (Schilt &
ment and contribute to the completion of a uni- Westbrook, 2009, p. 441). Law can, in particu-
versal rights project and, therefore, are lar, been seen as essential to the social creation
fundamentally universalist. The YPs, however, and reproduction of heteronormativity, and
allow for and support the transgression of tradi- human rights law especially has contributed to
tional sexual and gender binaries apparently the maintenance of a problematic construction
supported by post-Kantian universalist thought. and regulation of “sexual subjects” that is
The following sections will explore the deeper aligned with the wider construction of problem-
theoretical issues that the above sections have atic gender binaries, gender roles, and hetero-
touched upon and will demonstrate that trans- normativity within human rights discourse and
genderism is disruptive of heteronormativity, practice more generally (Johnson, 2010, p. 72).
as suggested above. The following sections Erni (2013, p. 137) effectively argues that law
will then demonstrate that, despite the antifoun- perceives transgender people as an abject class,
dationalist approach traditionally associated rather than subjects, and Reed (2005, p. 51)
with LGBTC politics, universalist approaches similarly argues that, with regard to sex legisla-
to human rights can contribute to realization of tion, difficulty is faced by current jurisprudence
LGBTC rights, that such approaches can be when assignation of a person’s sex is problem-
inclusive of transgressive identities, and that atic according to the existing gender binary.
therefore the theoretical framework of the YPs, Isaak further demonstrates that the major
which informs the construction of the survey human rights institutions “gear their services to
and the analysis presented in this literature the needs of heterosexuals, ignoring the exis-
review, which utilizes elements of analytical tence of lesbian and gay people and their fami-
constructivism to consider the relationship lies” (Isaak, 2005, p. 54).
between law, public identities, and individual As Valocchi (2005, p. 756) notes, however,
identities, are theoretically coherent. heteronormativity precedes the human rights
institutions that maintain, organize, and repro-
Heteronormativity and Human Rights duce it and, therefore, do so precisely because
their theoretical and functional development
Understanding of sexuality in academic dis- was determined by normative and discursive
course changed dramatically in the 1970s societal structures that included sexism and het-
through the influence of theorists such as Fou- eronormativity, leading to the patriarchal and
cault, who introduced the idea of the social sexual binary model of human rights presented
construction of sexuality that challenged per- in the Universal Declaration of Human Rights
ceptions of homosexuality as either a psycho- and other major conventions (Richardson,
logical disorder or a desire that manifested 2007, p. 460; Waites, 2009, p. 140). It is this
itself to varying degrees within the population precondition and reproduction of heteronorma-
(Ball, 1999, p. 272; Johnson, 2010, p. 71). This tivity that explains why LGBTC people have
10 INTERNATIONAL JOURNAL OF TRANSGENDERISM

historically been, and remain, at particular risk and bisexual people than transgender people.
of human rights abuses, through both the inabil- Therefore, if transgender people are considered
ity of institutions to offer protection from to be disruptive of heteronormativity, they will
abuses and through the societal response of be at greater risk of human rights violations.
human rights abuse to the transgression of het- This is a problematic assumption however, and
eronormativity. Wong, McCreary, Carpenter, it has been suggested that transgender people in
Engle, and Korchynsky (1999) demonstrate the fact conform to heteronormativity through the
interactions between gender identity and sexual reproduction and exaggeration of gender bina-
orientation, and their societal interpretations, ries and gender roles rather than their transgres-
and shows that, particularly in relation to sion. In particular, this has been espoused by
human rights abuses, they are interpreted in gender essentialist theorists, particularly in
similar ways that can, and often do, provoke relation to the human rights of women and les-
violent responses that lead to the violation of bians, where the progression of transgender
LGBTC rights. rights is seen to be beneficial to the patriarchal
Waites (2009) argues that the extension of construction of human rights and therefore in
LGBTC rights does not entail, and has not opposition to the progression of the rights of
entailed the eradication of heteronormativity, women and lesbians (see Jeffreys, 1997, for an
rather it has reconfigured the “heterosexual example of this). This invalidates the above
matrix” that still privileges a binary model of hypothesis. This section will therefore demon-
gender, sexual behaviors, sexual identities, and strate that transgender people are disruptive of
sexual desires that “are defined exclusively in heteronormativity and can be considered to
relation to a single gender within this binary” transgress societal gender norms through an
(p. 138). While Waites is correct in contesting exploration of literature concerning the mean-
this new configuration, it is not suggestive of a ings and interpretations of transgender and its
fundamental flaw in using rights institutions to political significance.
protect LGBTC rights in society; rather, this Transgender is referred to by Monro (2003,
reconfiguration established by Waites exempli- pp. 433–434) as encompassing “cross-dressers,
fies the evolutionary nature of rights institutions. transsexuals, androgynes, intersex people, drag
With persistent, critical, and reflective progres- queens and kings, third gender people and other
sion, it would be possible to develop human transgender people”; Monro, however, notes
rights norms that lack heteronormativity or at that it is a problematic term primarily due to its
least redress the heteronormativity of existing wide application and breadth as an umbrella
rights norms. Waites concludes that rather than category, as the included social groupings have
abandoning efforts to categorize, the possibility distinct needs (Monro, 2003, p. 344). Currah,
of contesting dominant meanings and engaging Juang, and Minter (2006, p. 3-4) recognize
in consistent political contestation could be transgender as a grassroots term designed to
effective (Kollman & Waites, 2009, p. 13). “resist the imposition of labels created by the
psychiatric establishment to define and contain
Is Transgender Transgressive? cross-gender identities and behaviours.” Waites
(2009), however, offers perhaps the most prac-
Waites’s conception of the reconfigured tical and inclusive definition of transgender: “a
“heterosexual matrix” further informs the concept encompassing a variety of forms of
hypothesis that transgender people are more at identification and behaviour defying the domi-
risk of a wider range of human rights abuses nant sex and gender binaries” (p. 147), and this
than others in the LGBTC community because, is how the term is employed here.
as demonstrated above, the progression of sex- Cowan (2005, pp. 72–73) argues that trans-
ual rights has advanced more than transgender sexuality can be “made to fit” the heteronorma-
rights, implying, therefore, that the reconfig- tive order through legal classification and the
ured “heterosexual matrix,” while still prob- anonymity of passing. Jeffreys (1997) furthers
lematic, has better accommodated lesbian, gay, this contestation by arguing that, in fact,
T. Stocks 11

transgender people cement heteronormativity Is This Approach Compatible With


and suppress the rights of women and lesbians Universalism?
through their reproduction of an idealized femi-
ninity that is fundamentally sexist and supports Rights discourse is based primarily on liberal
patriarchal systems. Conversely, Flynn (2001) thought and notions of equality and universal-
argues that “transgender rights . . . are not only ism, and LGBTC activists, particularly trans-
significant . . . for trans individuals, but also gender rights theorists, have consistently
because we may not be able to achieve full legal appealed to notions such as universal will, non-
and social equality for women” without trans- harm, and fairness (Monro, 2003, p. 437). Uni-
gender litigation’s potential to articulate mani- versalism has, however, been subject to various
festations of gender discrimination otherwise problematizations, some of which are relevant
impossible to address (p. 397). The arguments to address here. For example, feminists have cri-
presented by Cowan and Jeffreys, however, tiqued the primary focus of universalism, the
engage only minimally with transgender as a relationship between the state and the individ-
concept. Jeffreys’ conception of transgender is ual, for its failure to extend rights beyond the
based entirely on male-to-female transsexuality public sphere and into the private sphere that
that is then artificially sexualized in a specific has excluded the rights of women (Miller et al.,
way, by Jeffreys, to validate her arguments 1995, p. 432). This is similarly problematic for
against transgender as a concept, whilst simulta- LBGTC people, who often also experience
neously failing to interact with any other mani- rights violations in the private sphere that are
festations of transgender. Instead, the actual legitimized by rights such as the right to a fam-
sexualization of transgender people through spe- ily life or to privacy that have been used to
cific situations and contexts such as sex, for legitimize forms of domestic abuse, both of
example, actually presents a further challenge to which have been cornerstones in the realization
heteronormativity as demonstrated by Schilt and of LGBTC rights in the public sphere. As noted
Westbrook (2009, p. 442). above and by Ball (1999, p. 274), queer theory
Furthermore, transgender people may rejects notions of a universal or foundationalist
inhabit spaces of heteronormative citizenship, moral principle or the existence of a definable
spaces of nonheteronormative citizenship, and and pure human, and emphasizes the social con-
spaces of feminist citizenship simultaneously, struction of the human, sexuality, and rights.
separately, or fluctuating between spaces of cit- This antifoundational approach contains onto-
izenship depending on a variety of variables, logical similarities to cultural relativism, and
with many people under the transgender certain theorists maintain that people have
umbrella falling permanently outside of main- “cultural genitalia,” indicating the impossibility
stream/heteronormative citizenship; this model of a universalist approach to rights or to sexual-
can be extended to sexual relationships again ity, sex, and gender (Schilt & Westbrook, 2009,
demonstrating, therefore, the interaction p. 442). Cultural relativists have advanced asser-
between sexuality and gender and further tions of, for example, a notably Western bour-
exemplifying the transgressive nature of trans- geois individualism permeating rights theory
gender (Monro, 2003, p. 439). It can be and practice, the imposition of a universal stan-
assumed, given the creation by heteronormativ- dard that ignores historical and cultural differ-
ity of a divisive structure that allows the identi- ence, the problematic application of rights to
fication of “good” and “bad” sexual and justify intervention, and universal standards that
gendered citizens (see LGBTC Rights and the are racist and neocolonial (Correa, Petchesky, &
European Union), that transgender people that Parker 2008, p. 152). The cultural relativism/
inhabit multiple spaces of citizenship outside universalism debate has been widely addressed
of heteronormativity, particularly transgender elsewhere (see Frank, 2001, for a detailed exam-
people that identify sexually as lesbian, gay, ination of the debate, and Correa et al., 2008,
bisexual, or queer/questioning, will be at even for a powerful defense of the universal human
greater risk of human rights abuses. rights project); this section will therefore
12 INTERNATIONAL JOURNAL OF TRANSGENDERISM

address the apparent conflict between the rights relies on the existence of these base foun-
embrace and support of a universalist construct dational structures allows for an epistemic stop-
of human rights and the use of antifoundational- ping point to be inferred. This model, employed
ist ideas in the development of the hypotheses. here, allows for the progression of queer theory
McWhorter employs a Foucauldian critiques that have helped inform a more inclu-
approach to the issue of universal human sive approach to LGBTC rights, while still rec-
rights, exemplifying queer theory’s antifoun- ognizing the benefits of the progression of
dationalism, demonstrating that there is no universal human rights within this paradigm.
“epistemic stopping point” (McWhorter, as Certainly, universalism offers an immediacy
cited in Ball, 1999, p. 278) when considering not available to antifoundationalist accounts
the concept of the human if the antifounda- that allows for universal human rights to be a
tionalist account is taken to be correct and, valid macropolitical approach for improving
therefore, the universalist project, particularly the lives of LGBTC people and social attitudes
relating to sexuality, sex, and gender, is toward them. The norms provided by a human
flawed. Ball (1999, p. 275) argues instead rights framework allow powerful and legiti-
that there are at least some basic related mate social justice claims to be made by politi-
needs regardless of the extent of an antifoun- cal movements and create “systems of public
dationalist reductive analysis, such as require- regulation and accountability they can use as
ments of affectional and sexual intimacy forums to publicize those claims and shame
(Ball, 1999, p. 272); however, this position is corporate and government violators—even
potentially questioned by asexuality. Still, when, in practice, enforcement is weak” (Cor-
Ball’s (1999) assertion that even if queer the- rea et al., 2008, p. 153).
ory is right, and that everything that makes
one human is a social construct, more is lost
than is gained if “we reject the notion that HYPOTHESES
there is something intrinsically normative in
the idea of a ‘human being’” (p. 285) is cor- This article proceeds on the hypotheses that
rect, particularly in efforts to improve the LGBTC rights in the UK have been underreal-
lives of people vulnerable to abuses of human ised, that transgender people have been particu-
rights. For Ball (1999, pp. 282–283), the larly at risk of human rights abuses in the UK in
problem of antifoundationalist critiques of comparison to other people included under the
human rights is that their anti-essentialism is LGBTC banner, and that transgender people
too extensive. This is a similar position to will therefore have experienced a wider array of
that of Valocchi (2005, p. 752), who stressed rights abuses more consistently. This article also
the importance of recognizing the consequen- hypothesizes that transgender people that inhabit
ces of social constructions and engaging pri- multiple spaces of citizenship outside of hetero-
marily with these consequences in research, normativity will be at a further increased risk of
which antifoundationalists often neglect to do human rights abuses. These hypotheses are
in their pursuit of deconstruction. based on the above literature review that has
However, it is possible for the creation of an demonstrated the imbalanced and slow progres-
epistemic stopping point if antifoundationalism sion of LGBTC rights that has, particularly in
is employed as a methodological tool with the UK, favored the progression of sexual rights
which one can critique and examine existing over transgender rights and the maintenance of
human rights norms and practices, where the heteronormativity which allows for greater chan-
existence of the state and the individual, their ces of abuses of the rights of LGBTC people in
relationship, and the relationship of individuals the private and public arenas. These hypotheses
to each other are taken to exist “as is” and will be considered through an analysis of the fre-
rights are recognized as a tool for the mainte- quency of positive responses to survey questions
nance and improvement of these social struc- that indicate a form of human rights abuse
tures and bonds; that the existence of human according to the YPs.
T. Stocks 13

METHODOLOGY undoubtedly been alienating to certain individ-


uals despite the guarantee of the anonymity and
Using the YPs, I designed a survey that confidentiality of the responses; this is, how-
aimed to collect information about LGBTC ever, unavoidable.
people’s human rights experiences in the UK. The survey was online, and constructed
Questions were derived from each principle, using Survey Monkey. A personal email
and asked in the format “Have you ever experi- address was made available to respondents in
enced . . .” (see Appendix B for a complete order for them to forward any issues or con-
copy of the survey). Additional information cerns they encountered or to discuss the aims
was included for the clarification of certain of the survey. However, no information was
questions, and all of this additional information collected that would identify respondents. An
was further derived from the Yogyakarta Prin- online survey was employed for a variety of
ciples in order to adhere as closely as possible reasons: first, for ease of collection and analysis
to the framework they provide. Herrick (2010) of results; second, for increased appeal to
has previously surveyed attitudes of the mem- respondents; third, for the increased perception
bers of the legislator toward LGBTC people in of the anonymity of respondents; and finally,
the United States and related her findings to for the speed and cost effectiveness of such an
LGBTC rights. This is a particularly interesting approach. A paid version of Survey Monkey
approach that explored the differences in atti- was used in order to avoid limitations on
tudes of those most able to work toward respondent levels and to allow the use of ques-
LGBTC rights realization in the United States tion logics, which were incorporated for certain
and the attitudes of the general public, demon- follow-up questions. However, it is noted that
strating that the public was more likely to sup- the use of online surveys has an exclusionary
port LGBTC rights. Similarly, Tee and effect, and this is a potential reason for the
Hegarty (2006) again conducted research that small number of respondents over the age of
focused on the attitudes of the general public to 60. However, the benefits provided by an online
transgender rights. survey in relation to cost, time, and ease vastly
However, rather than conducting an attitudi- outweighed this. The survey itself was distrib-
nal study, this study was designed to focus on uted via LGBTC charities and organizations,
the subjective rights experiences and histories some of which offered feedback in the initial
of LBGTC people in the UK. This method has stages of the development of the survey. The
certain limitations that relate to respondent organizations were located using a variety of
bias; for example, people that believe they means, primarily online LGBTC organization
have experienced rights violations will be more directories. Many of the organizations agreed
likely to respond than those who believe they to pass on links to the survey to members of
have not. In order to avoid this, the survey was their organization and subscribers to their mail-
framed in a similar way to an attitudinal study ing list, for example. It was also passed on
and rights discussion was minimized. The sur- through word of mouth between organizations
vey itself was titled LGBT Rights in the United and was eventually forwarded by an organiza-
Kingdom, although no reference was made tion via the LGBTC JISCmail service, a
directly to human rights in the information sec- national academic mailing service.
tion of the survey. This was done deliberately Throughout the construction of the survey,
to avoid the politicization of the survey and to various LGBTC charities were contacted and
focus the attention of the respondents toward presented with draft versions to consider if the
consideration of their own experiences of the questions were acceptable and not offensive.
situations presented in the questions. It has Initial drafts had incorporated multiple-choice
been noted that, in general, “human rights” has responses to the questions regarding the indi-
a very specific politicized meaning in the UK vidual’s sexual orientation and gender identity;
(Nash, 2006, p. 338). Furthermore, the sensitive various charities believed this to be potentially
and deeply personal subject matter will have alienating and suggested instead that the
14 INTERNATIONAL JOURNAL OF TRANSGENDERISM

respondent should be able to identify in their the fact that most responses from this category
own terms. For analytical ease, a question was were individualized, making bulk analysis diffi-
asked on top of these questions to indicate if cult; this category was therefore designed pri-
the respondent is transgender; it was recom- marily for explanatory clarity but remains
mended by Gendered Intelligence that this consistent with the wider use of the concept
question be, “Is your gender identity the same “Queer” in relation to LGBTQ, for example.
as the gender you were assigned at birth?” If The primary distinctions will be made between
the respondents indicate that they have experi- these categories, and between transgender peo-
enced a form of human rights abuse similar to ple and nontransgender people. The primary
that asked in the question, they were offered cleaning of the data reduced the sample size to
the opportunity to detail their experience. This n D 504, this includes partially completed
initially served two purposes. Random sam- responses. When the results were categorized
pling of the responses was conducted to, first, into LGBTQA categories and cleaned further,
ensure that the respondents had understood the the final sample sizes were L: n D 112; T: n D
question and, second, to allow a more detailed 111; G: n D 136; B: n D 67; Q: n D 22; and A:
consideration of the state of LGBTC rights n D 2. Neither person identifying as asexual
now, as additional information was requested but not transgender reported any experiences of
from the respondent including the year and human rights violations; these results were sub-
location the experience occurred. However, the sequently removed from the analysis. The
initial sample size was expected to be n  100, transgender category will be again categorized
which would have allowed for a more detailed according to sexual orientation (LGBTQSA)
study of the responses. The actual collected further into the analysis. The differences in
sample size was n D 614 and, therefore, a dif- mean results are due to missing information
ferent approach was adopted in order to still from some of the respondents, leading to the
consider the validity of the hypotheses in the exclusion of their results from certain sections
limited time frame available. Instead, the data of the analysis. In total, 85% of respondents
will be analyzed according to the frequency of reported one or more incidences of human
reported rights abuses and the frequency that rights abuse according to the YPs.
individuals reported experiencing multiple
rights violations.
Certain omissions were made prior to the ANALYSIS
analysis: first, a number of cis-gender hetero-
sexual people responded and their responses From the initial survey questions, the core
were omitted as they are not relevant to this dis- questions (the questions that indicate a viola-
cussion; furthermore, erroneous answers were tion of human rights according to the YPs)
omitted and certain responses were not serious were isolated (see Appendix A for a list of
or were otherwise unusable (inclusion of delib- these questions). Table 1 shows the percentage
erate, irrelevant offensive material, or respond- of respondents that answered positively to each
ing with “sfvsfvssfvs,” for example). Other question and the mean percentage of respond-
individuals refrained from answering the demo- ents that answered positively for each question.
graphic questions regarding sexual orientation Table 1 clearly demonstrates that transgender
and gender identity, and their results were people and people that identify as queer/ques-
therefore omitted. In order to facilitate analysis, tioning are the most likely to have experienced
the sexual orientation categories were separated a form of human rights violation considered by
into Lesbian, Gay, Bisexual, Queer/question, the questions and that transgender people
Asexual, and Straight (for transgender people appear to experience certain forms of violations
that identified as such). Responses such as much more frequently when compared with
“queer,” “unsure,” “fluid,” and “pan/poly- other groups. For example, question 2, which
sexual,” for example, were incorporated into concerns legal recognition of gender identity/
the Queer/questioning category. This is due to sexual orientation; question 7, which concerns
T. Stocks 15

TABLE 1. Percentage of Respondents matrix, as expressed above. Table 1 also dem-


Indicating Experience of Human Rights onstrates that LGBTC people have been at risk
Violation According to the Survey Questions, of a variety of human rights abuses in the UK
Listed by Core Question Number according to the YPs, most prominently dis-
(See Appendix A) crimination, which gained a high percentage of
responses across all groups.
Question The provision of social welfare, including
number Transgender Lesbian Gay Bisexual Queer access to the National Health Service (NHS)
1 57.6 50.8 46.3 49.2 77.2 and the denial of medical treatment, are poten-
2 24.3 7.1 5.1 5.9 4.5 tially consistent with transgender experiences;
3 63.0 51.7 50.7 37.3 54.5 the realization of one’s gender identity may
4 40.5 25.8 24.2 43.2 45.4
5 4.5 0.8 5.8 1.4 4.5
require specialized medical and/or mental
6 4.5 2.6 1.4 1.4 4.5 health treatment that is difficult to obtain
7 17.1 0.8 7.3 5.9 4.5 through the NHS but often also a prerequisite
8 39.6 25.0 18.3 11.9 45.4 for legal recognition. Similarly, issues regard-
9 19.8 8.0 2.2 5.9 13.6
10 20.7 11.6 13.9 1.4 9.0
ing legal recognition are likely to be a greater
11 18.0 6.2 11.7 11.9 31.8 part of a transgender person’s experience than
12 16.2 2.6 5.8 5.9 13.6 the experiences of LGBQC people. That ques-
13 16.2 0.8 5.8 2.9 4.5 tion 7 received substantially more responses
14 35.1 13.3 16.1 19.4 18.1
15 6.3 1.7 2.2 4.4 4.5
from transgender people, however, is not
16 9.9 4.4 10.2 2.9 9.0 immediately predicted by the construction of
17 11.7 7.1 7.3 0.0 9.0 the hypotheses or the discussion presented in
18 6.3 2.6 1.4 14.9 0.0 the literature review. However, the YPs make
19 36.0 8.9 12.5 29.8 0.0
Mean 21.0 11.6 12.3 11.1 18.66
an explicit connection between question 7 and
Average% question 10 as an inability to find adequate
housing is a risk factor of sexual abuse, exploi-
tation, and trafficking (Yogyakarta Principles,
2006). The YPs list the risk factors of sexual
sexual exploitation; question 9, which concerns exploitation and trafficking as including, but
the provision of social welfare; question 10, not being limited to “social exclusion, discrimi-
which relates to ability to find adequate housing nation, rejection by families or cultural com-
free from intimidation; question 12, which con- munities, lack of financial independence,
cerns the denial of access to healthcare; ques- homelessness, discriminatory social attitudes
tion 13, which concerns pressure to undergo leading to low self-esteem, and lack of protec-
medical procedures; question 14, which con- tion from discrimination in access to housing
cerns expression of your sexual orientation/ accommodation, employment and social serv-
gender identity; and question 19, which con- ices” (Principle 11, Yogyakarta Principles,
cerns difficulty in participating in cultural life 2006). Table 1 demonstrates that transgender
in the UK, received positive responses from a individuals in the UK have been therefore at an
higher percentage of transgender people com- increased risk of sexual exploitation and that
pared with other groups. Question 19 in partic- this may be primarily due to an increased sus-
ular points the vulnerability to rights abuses ceptibility to factors that increase vulnerability
created through a transgression of heteronor- to sexual exploitation and trafficking.
mativity as it relates to subjective feelings of Question 8, which regarded difficulty in find-
inclusion within the cultural life of the UK, ing work and discrimination in the workplace,
which is geared toward the maintenance and received a notable number of responses from
reproduction of heteronormativity. Similarly, both the transgender and Queer/questioning
positive responses to question 14 are to be categories, as did question 11, which regarded
expected in any society that maintains hetero- discrimination in the education system. The
normativity and a reconfigured heterosexual lower number for lesbian, gay, and bisexual
16 INTERNATIONAL JOURNAL OF TRANSGENDERISM

people is potentially consistent with the protec- create a human rights framework that is funda-
tion of homosexuality offered by the Equality mentally exclusionary. Currah and Minter
Act of 2006 in these areas, the way in which (2000, p. 38) further argue that this has
queer/questioning people are excluded from excluded people with a disability. Therefore, it
such legislation, and the way transgender rights is expected that people identifying as LGBTC
in these areas have generally been subsumed and disabled will be at a further increased risk
within existing gender discrimination legisla- of human rights violations through their occu-
tion, which is not necessarily applicable to pation of two or more excluded spaces of citi-
transgender people. These sections confirm the zenship; this is further established in the
hypotheses that transgender people will be at section Is Transgender Transgressive? and
an increased risk of human rights abuses in the forms part of the hypothesis that is discussed
UK according to the YPs and that the rights below. However, Figure 2 and Tables 2 and 3
experiences of transgender people in the UK aim primarily to consider the relationship
will be notably different to other groups within between demographic variables and frequency
the LGBTC umbrella. of reported violations. Figure 2 displays an
Figure 1 demonstrates the average number increase in the average number of reported inci-
of reported rights violations by individuals. dences of human rights violations by respond-
This graph indicates that transgender people ents identifying as disabled when compared
and people identifying as queer/questioning are with the overall averages in Figure 1.
more likely to experience multiple forms of The results from Table 2, however, are
human rights violations in the UK. Again, this mixed. It most notably demonstrates an
is consistent with the hypotheses and the wider increased prevalence of the reported human
discussion presented in the literature review. rights abuses of transgender respondents in
This also further suggests that people identify- lower income groupings; however, this effect is
ing as queer/questioning are excluded from the only expressed by the transgender category,
reconfigured “heterosexual matrix” discussed and, therefore, lower income does not appear to
above. correlate with a greater risk of human rights
As noted in Background Information and by abuses for LGBQC people. That this differs for
Currah and Minter (2000, p. 38), normative transgender people is potentially consistent,
prescriptions of the human have helped to however, with the above discussion relating to

FIGURE 1. Mean number of violations reported by survey respondents


T. Stocks 17

FIGURE 2. Mean number of reported human rights violations by respondents with a disability

transgender people being at a greater risk of would be a more appropriate way of consider-
sexual abuse and trafficking, where forms of ing this. The collected data is able to consider
social deprivation appeared to indicate an the primary hypotheses of this article; however,
increased risk of human rights violations. a larger study that focused on a comparison of
Table 3 considers the relationship between the reported rights violations before and after
age and number of reported violations of the introduction of the Equality Act of 2006
human rights according to the YPs. No consis- and the Gender Recognition Act of 2004 or of
tent pattern emerges here, although the older experiences only in the previous decade, for
than 60 group, including both transgender peo- example, would be better suited for a consider-
ple and bisexual people, did report notably ation of the current condition of LGBTC rights
higher incidences of rights violations. This sec- in the UK.
tion is problematic however, primarily due to As Table 1 displays, transgender people
the small sample sizes, particularly of respond- have been more at risk of human rights abuses
ents over the age of 55. Similarly, the older the in the UK than other people within the LGBTC
respondent is, the more time the person has had umbrella. Figure 3 attempts to further demon-
to potentially experience a human rights viola- strate that the concept of heteronormativity
tion. Therefore, while the effect of this demo- explains this by considering the reported inci-
graphic variable merits greater investigation dences of human rights violations of transgen-
with higher sample sizes, as it did infer some der respondents by further categorization by
variation, a larger study would benefit more sexual orientation. As established in the section
from the consideration of rights abuses within a Is Transgender Transgressive?, transgender
specific time frame, for example, to allow for people may move between spaces of excluded
the proper consideration of age as a variable. citizenship, inhabit multiple spaces, or inhabit
While these results could suggest that the rights heteronormative spaces of citizenship. If the
experience of LGBTC people in the UK has concept of heteronormativity explains an
remained consistent, a time-series analysis increased risk of human rights violations
against those inhabiting excluded forms of
TABLE 2. Mean Number of Reported Rights
Violations According to Income TABLE 3. Mean Number of Reported Rights
Violations According to Age Group
Income per a.£ Transgender Lesbian Gay Bisexual Queer
Age Transgender Lesbian Gay Bisexual Queer
<15,000 8.2 2.2 2.9 2.7 5.2
15,000–30,000 5.0 5.0 2.3 1.6 3.0 <25 4.1 1.2 2.6 2.3 2.2
30,000–60,000 3.8 2.0 1.8 2.2 5.4 25–40 3.8 2.6 1.9 2.0 4.3
60,000–100,000 2.1 2.0 2.3 1.3 3.5 40–60 5.2 3.2 2.9 2.7 5.2
>100,000 N/A N/A 2.0 N/A 2.5 >60 7.0 2.3 1.3 6.5 2.0
18 INTERNATIONAL JOURNAL OF TRANSGENDERISM

FIGURE 3. Mean number of reported rights violations against transgender people by sexual
orientation

citizenship, individuals identifying as trans- LGBTC people. LGBTC Rights and the United
gender and one or more other forms of Nations found that LGBTC rights in the UN
excluded citizenship will be even more at risk have made few advances despite being framed
of human rights abuses. The results indicate in various ways, such as through appeals to the
that individuals that inhabit multiple spaces of ICCPR, through the appeals to the realization
excluded citizenship are at a further increased of the rights of women, through CEDAW and
risk of human rights abuses. This is consistent CESCR, and through appeals to the rights of
with the results outlined in Figure 2. Figures 2 the child. While advances in same-sex rights
and 3 suggest that those in the LGBTC com- at the UN have been limited, transgender rights
munity that have been most at risk of human in the UN have been almost entirely absent
rights abuses in the UK are transgender people from discussion. LGBTC Rights and the Euro-
who identify as gay, followed by transgender pean Union considered the progress of LGBTC
people who identify as disabled (Figure 2) and rights at the European level, demonstrating that
queer/questioning. LGBTC rights were introduced in the EU in
the 1980s, that much of the success was due to
the proliferation of LGBTC NGOs and that the
CONCLUSION decisions of the European courts emphasized
privacy, which contributed to the maintenance
The first section of this article discussed and reproduction of heteronormativity. LGBTC
some background information and history relat- Rights and the United Kingdom considered
ing to LGBTC rights. This section demon- LGBTC rights in the UK, and demonstrated
strated that LGBTC rights emerged in response that much of the progress of LGBTC rights in
to the heterosexual bias embedded within the the UK occurred at the European level through
existing human rights regime; that LGBTC cases at the European courts. This section also
movements did not employ rights rhetoric until demonstrated that in the UK, transgender is
the 1980s; that initial movements focused on taken practically to mean either postoperative
the rights to privacy, equality, and sexual self- transsexual, or transgender people waiting to
determination; and that the increase in move- undergo hormonal and/or surgical sex reassign-
ments supporting transgender and intersex ment, and that only transgender people that can
rights advanced the right to legal recognition of be considered minimally disruptive to hetero-
one’s gender and the freedom from medical normativity are covered by the protection
injustices, such as forced gender reassignment offered by the UK to transgender people. These
for intersex children. This section also argued sections demonstrated that the progression of
that exclusion of LGBTC people from human LBGTC rights has been slow and uneven and
rights conceptions is simultaneously dehuman- favored sexual rights over gender rights. That
izing, and based on the dehumanization of is not to say, however, that sexual rights are by
T. Stocks 19

any means fully realized in the UK; as this arti- Bisexual categories. While it was not expressly
cle has also shown, they are not. considered in this article, the exclusion of peo-
The sections Constructing LGBTC Rights, ple identifying as queer/questioning is consis-
Heteronormativity and Human Rights, and Is tent with the concept of heteronormativity and
Transgender Transgressive? further considered the reconfigured heterosexual matrix.
the concept of heteronormativity and aimed to The results also indicated that transgender
show how the concept of heteronormativity people have been potentially more vulnerable
explains and predicts the particular vulnerabil- to sexual exploitation and abuse in the UK; it is
ity of LGBTC people to human rights abuses suggested that this may be due to an increased
in the public and private spheres. Is Transgen- vulnerability to factors that increase the risk of
der Transgressive? further demonstrated that sexual exploitation. However, the research con-
people that inhabit multiple spaces of excluded ducted here is not extensive enough to consider
citizenship, such as LGBTC people who are this in greater detail; although, particularly as it
disabled or transgender people who also iden- indicates a severe and damaging form of human
tify as gay, for example, will be even more vul- rights abuse, it certainly warrants future
nerable to human rights abuses. Is This research and further investigation. Further-
Approach Compatible with Universalism? more, the results did not demonstrate a clear
aimed to demonstrate that the concepts link between income or age and the increase of
employed in the literature review are compati- reported incidences of human rights abuse. A
ble with universalism and that universalism study conducted using larger sample sizes
offers greater prospects for the real-world would be better able to rule out a connection
improvement of the lives of LGBTC people in here, however.
comparison to antifoundationalist approaches. The results further demonstrated the validity
The final section of the literature review intro- of the hypothesis that people that inhabit multi-
duced the Yogyakarta Principles. ple spaces of excluded citizenship are at an
The article proceeded to defend the follow- even greater risk of human rights abuses in the
ing hypotheses: LGBTC rights in the UK have UK; the responses from LGBTC people with a
been underrealized, transgender people have disability and from transgender people who
been particularly at risk of human rights abuses also identified as lesbian, gay, bisexual, asex-
in the UK in comparison to other people ual, and queer/questioning were more likely to
included under the LGBTC banner and that report incidences of human rights violations.
transgender people will have therefore experi- This was particularly pronounced for individu-
enced a wider array of rights abuses more con- als that identified as transgender and gay, trans-
sistently. This article also hypothesized that gender and queer/questioning, and transgender
transgender people that inhabit multiple spaces and disabled. These results also imply the
of citizenship outside of heteronormativity will validity of heteronormativity as a concept and
be at a further increased risk of human rights an analytical tool, particularly when employed
abuses. The results from the survey appear to to scrutinize human rights theory and practice,
demonstrate the validity of these hypotheses. as heteronormativity predicts and explains
Transgender people most consistently reported these results.
rights violations according to the survey, and Through the utilization of the YPs as an
the percentage of transgender people who exploratory tool, this article has uncovered
reported rights violations was the highest of human rights situations hidden to traditional
any group for the majority of the responses. A human rights discourses. This article has there-
higher percentage of respondents in the Queer/ fore demonstrated the usefulness of using non-
questioning category answered positively to recognized human rights norms as a tool for the
questions 1, 4, 8, and 11, although the number exploration of rights realities and the scrutiniza-
of positive responses from transgender tion of regions, institutions, policies, and law.
respondents was still notably high for these As noted above, Kollman and Waites (2009, p.
questions compared with the Lesbian, Gay, and 13) argue that it is essential for the progression
20 INTERNATIONAL JOURNAL OF TRANSGENDERISM

of LGBTC rights to continually and consis- Development with a body: Sexuality, human rights and
tently engage in political contestation, and using development (pp. 1–21). London, UK: Zed Books.
the YPs as the basis for political contestations in Correa, S., Petchesky, R., & Parker, R. (2008). Sexuality,
health and human rights. Routledge.
reference to LGBTC rights would unify these
Cossey v. United Kingdom, 10843/84, European Court of
efforts by helping to develop a coherent and Human Rights (1990, September 27).
clear framework through which systems of pub- Cowan, S. (2005). “Gender is no substitute for sex”: A com-
lic regulation and accountability can be derived; parative human rights analysis of the legal regulation of
it is these systems that most profoundly contrib- sexual identity. Feminist Legal Studies, 13, 67–96.
ute to the initial realization of human rights Currah, P., & Minter, S. (2000). Unprincipled exclusions:
(Correa et al., 2008, p. 153). Therefore, the The struggle to achieve judicial and legislative equal-
more consistently the LGBTC rights practices ity for transgender people. William & Mary Journal of
Women and the Law, 7(1), 37–66.
and realities of countries can be assessed in ref-
Currah, P., Juang, R., & Minter, S. (2006). Transgender
erence to a single, coherent collection of norma- rights. Minneapolis: University of Minnesota Press.
tive principles by a variety of individuals and Dudgeon v. United Kingdom, 7525/76, European Court of
organizations, the faster and more effectively Human Rights (1981, October 22).
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or challenge the heteronormativity of (Miller ies, 27(1), 136–159.
et al., 1995, p. 437) recognized rights norms. Flynn, T. (2001). TRANSforming the debate: Why we
need to include transgender rights in the struggles for
sex and sexual orientation equality. Columbia Law
Review, 101, 392–420.
NOTE Frank, T. (2001). “Are human rights universal?” Foreign
Affairs, 80(1), 191–204.
1. LGBTC will be used to refer to all people that can
Fried, S. (2004). Sexuality and human rights. Health and
be incorporated under the LGBT banner, and throughout
Human Rights, 7(2), 273–304.
this article it will refer to not only lesbian, gay, bisexual,
Goodwin & I. v. United Kingdom, Application no. 28957/
transgender people, but also queer/questioning, pansexual,
95, European Court of Human Rights (2002, July 11).
asexual, intersex, genderqueer non-binary people, and all
Graupner, H. (2005). Sexuality and human rights in
other people that consider themselves to be represented
Europe. Journal of Homosexuality, 48(3–4), 107–139.
by the banner.
Helfer, L. (1990) Finding a consensus on equality: The
homosexual age of consent and the European Conven-
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Sanders, D. (1996). Getting lesbian and gay issues on the QUESTIONS IDENTIFYING HUMAN
international human rights agenda. Human Rights
RIGHTS ABUSES ACCORDING
Quarterly, 18(1), 67–106.
Schilt, K., & Westbrook, L. (2009). Doing gender, doing TO THE YPS
heteronormativity: “Gender normals,” transgender
people, and the social maintenance of heterosexuality. 1. Have you ever experienced discrimination
Gender & Society, 23, 440–464. based on gender identity/sexual
Sheffield and Horsham v. United Kingdom, 22885/93, orientation?
23390/94, European Court of Human Rights (1997, 2. Have you ever experienced difficulty in
March 4).
Siaz, I. (2004). Bracketing sexuality: Human rights and sex-
establishing legal recognition of your gen-
ual orientation—a decade of development and denial at der identity/sexual orientation?
the UN. Health and Human Rights, 7(2), 48–80. 3. Have you ever experienced any form of
Smith and Grady v. United Kingdom, 33985/96 and 33986/96, violence or harassment due to your sexual
European Court of Human Rights (1999, September 27). orientation/gender identity in any area of
Sutherland v. The United Kingdom, 25186/94, European your life (public, private, or family)?
Court of Human Rights (2001, March 27). 4. Have you ever experienced any difficulties
Swiebel, J. (2009). Lesbian, gay, bisexual and transgender
in maintaining a private life, or have you
human rights: The search for an international strategy.
Contemporary Politics, 15(1), 19–35. ever been forced to reveal private informa-
Tahmindjis, P. (2005). Sexuality and international human tion in any area of your life (public, pri-
rights law. Journal of Homosexuality, 48(3–4), 9–29. vate, or family)?
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5. Have you ever experienced arrest or deten- 13. Have you ever been pressured into under-
tion based on your gender identity/sexual going any form of medical procedure on
orientation? the basis of your gender identity/sexual
6. If you have ever been to court, do you feel orientation, including attempts to change,
your gender identity/sexual orientation cure, or influence your gender identity/sex-
affected your treatment during the court ual orientation?
proceedings? 14. Have you ever been prevented from
7. Have you ever experienced any form of expressing your gender identity/sexual ori-
exploitation (sexual or otherwise), sale, or entation through speech, deportment,
trafficking based on your gender identity/ dress, bodily characteristics, choice of
sexual orientation? name, or any other means?
8. Have you ever experienced difficulty in 15. Have you ever been prevented in partici-
finding work, encountered problems or pating in peaceful protests or direct action
discrimination in the workplace, or been due to your gender identity/sexual
denied work based on your gender iden- orientation?
tity/sexual orientation? 16. Have you ever been denied the ability to
9. Have you ever experienced difficulty in practice freedom of thought, conscience,
obtaining any form of social welfare provi- or religion based on your gender identity/
sion based on your gender identity/sexual sexual orientation?
orientation? 17. Have you ever experienced difficulty in
10. Have you ever experienced any difficulties attempting to start a family based on your
in living arrangements, including eviction gender identity/sexual orientation?
or intimidation, based on your gender 18. Have you ever been denied the option to
identity/sexual orientation? participate in the conduct of public affairs
11. Have you ever experienced discrimination (this may include seeking work as a public
within the education system based on your official, a public servant, an elected official,
gender identity/sexual orientation? or serving in the police or military), due to
12. Have you ever been denied access to your gender identity/sexual orientation?
health care, including mental health and 19. Do you feel that you have ever experi-
sexual health services, based on your gen- enced difficulties in participating in cul-
der identity/sexual orientation? tural life in the UK?
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APPENDIX B: TEXT VERSION OF THE ORIGINAL SURVEY


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