Gender identity and sexual orientation in international and national (Norwegian) law

Human rights principles, like the right to equality and non-discrimination, self-determination and integrity apply to all, simply by virtue of having been born human. Lesbian, gay, bisexual, transgender and intersex (LGBTI) persons are no exception. Yet, their right to equality and freedom is not explicitly included in the text of any specific treaty. The research analyses the process whereby LGBTI persons´ right to gender identity, self-determination and non-discrimination has evolved, with focus on the role of international judicial review and intervention by human rights treaty bodies. Human rights jurisprudence has often taken the experiences of adult LGBTI persons as starting point. The research project is, by taking a life cycle perspective, providing a fresh perspective. It is in the forefront of developing a human rights discourse that addresses the complex social, ethical and legal issues faced by intersex and transgender children and their parents, encountered at birth, during childhood and adolescence. It has also prompted research that addresses tensions between different understanding of gender within the human rights system itself, particularly between gender as plural and fluid and gender as binary and static. The research thus sets the scene for a discussion of how international conventions, such as the Convention on the Elimination of All Forms of Discrimination against Women, through a step-by-step approach, may enhance its potential to address gender stereotypes that create, uphold and reproduce the binary gender orthodoxy. A key concern regarding the content and outreach of LGBTI persons' human rights protection is the tension between the binary and heteronormative conception of sex and gender on the one hand and the conception of gender as plural, fluid and flexible on the other. The research project, in its first phase, addressed Norwegian law's sterilization criteria in the light of the right to gender identity under human rights law. The second phase of research explores the impact of the Norwegian Gender Recognition Act from 2016 and the Equality and Anti-Discrimination Act's prohibition against discrimination on the grounds of sexual orientation and gender identity on LGBTI persons' situation in areas like refugee law, family- and child law, education law and health law. A key question is whether the binary conception of gender in the Gender Recognition Act can be reconciled with the plural and fluid conception of gender embedded in the Equality and Anti-Discrimination Act. A related question is how Norwegian legislation, which applies in the field of reproduction and parenthood, constructs the relationship between bodies and genders. Whether gender specific legal terms like mother, father and co-mother should be replaced with gender- neutral terms, is discussed. Another area of contestation is transgender persons´ right to necessary healthcare, particularly the right to hormone treatment. Norwegian medical practice, which require a diagnosis, does not sit well with transpersons' right to gender identity and self-determination under national and international law. Transgender children's right to toilets and changing rooms without discrimination, the research shows, is a complex legal issue that calls for careful consideration of the relationship between individual equality rights and the state's duty to change physical structures that create and uphold a binary conception of gender. Furthermore, research shows how legal rules concerning lesbian and gay persons don't have the intended effects because they take the lived realities and life values of heterosexual persons as starting point An example is how lesbian and homosexual asylum seekers, to appear as genuine and credible, have to demonstrate their aspiration of romantic love and marriage. The research project shows how national law's predominantly binary and heteronormative construction of gender, leads to exclusion and stigmatization of LGBTI persons. The right to gender identity and equality, embedded in new national legislation, is often overruled by laws and principles that are privileging a conventional understanding of gender. The project seeks to contribute to legal change through reinterpretation of national law, and through presentation of alternative models for legal change. National legislation is, to respect, protect and fulfil LGBTI children, adolescent and adult social and economic rights, reinterpreted in the light of international legal sources. With a view to full recognition and real equality between the plurality of sexualities and gender identities that exist in society, the project is initiating a discussion of the strengths and weaknesses of two different models. Legal recognition of a third gender is one possibility. Abolition of legal gender followed up by a gender-neutral conception of legal personhood is another alternative.

The research is used by LGBTI rights organisations, human rights organisations, decision-makers and law-makers. Its analysis of the illegality of Norwegian law's sterilization criteria was one of the factors that prompted the Gender Recognition Act from 2016. The research on the situation of intersex and transgender children has contributed to the work of the UN Child Right Committee. The research on LGBTI rights has made a mark on legal education. It is included in courses on national and international equality and anti-discrimination law at the Faculty of Law in Oslo and Copenhagen. The project has built a pool of researchers that are taking the research further. The project researchers are employed in human rights watch dogs, Høgskolen i Østfold and the University of Bergen. They are also writing a commentary to the Norwegian Gender Recognition Act for Norwegian University Press and including LGBTI issues in a new text book on Equality and Anti-discrimination law at Gyldendal.

How the identities of persons not fitting into the traditional binary gender system are constructed and mediated by legal thought and culture has not been systematically addressed in legal science. Starting out with the situation of lesbian, homosexual, b isexual, transgender, transsexual and intersex persons (LGBTI) the project explores how new understandings of the concepts "sex" and "gender" are reflected in international law, in national law in selected countries and in Norwegian law. It focuses on the right to legal recognition of gender identity, the right to health, the right to bodily integrity and self-determination and the right to protection against discrimination. The project?s hypothesis is that human rights law and national law in some countr ies are influenced by new understandings of "sex" and "gender". In the light of empirical research on the situation of LGBTI persons in Norway it is assumed that the influence of newer theory on gender identity and human rights is limited. To analyse law in the light of the lived realities and identities of LGBTI persons the project adopts an interdisciplinary approach combining legal, ethical and empirical sources and methods. The encounter between existing laws and regulations and the problems and perce ptions of intersex and transgender persons, which takes place in the context of institutions providing health care, welfare and protection, is analysed within the framework of institutional ethnography worked out by Dorothy Smith. Combining a perspective from below that starts out with LGBTI persons' encounter with existing laws and practices, and a perspective from above that focuses on the dynamic development in human rights law, the aim is to contribute to a more plural and complex understanding of the individual person who is the subject of law. A related aim is to contribute to legal recognition of these categories of persons who so far to a large extent have been excluded from legal protection.