Reem Alsalem - the definition of woman

[Justme56]

https://www.ohchr.org/sites/default/files/documents/issues/women/sr/statements/20240404-Statement-sr-vawg-cedaw-convention.pdf

Reem Alsalem (UN Special Rapporteur on Violence against Women and Girls) was asked by the Australian Human Rights Commission (re Giggle versus Tickle) to give input into the meaning of the word ‘woman’ in the CEDAW. This is her response.

I agree with Snowypeaks. I thought the position paper was a very clear and strong endorsement that sex means biological sex and not gender, which is defined separately. IOW, a transwoman is a man, not a woman, for the purposes of the treaties.

Excerpts:

-While not addressing or defining the terms “sex” or “gender”, many foundational human rights treaties, and declarations, including CEDAW, enshrine a prohibition of discrimination based on sex which can only be taken to mean as referring to biological sex

In General Recommendation No. 28, the CEDAW Committee defined “gender” as “socially constructed identities, attributes and roles for women and men and society’s social and cultural meaning for these biological differences resulting in hierarchical relationships between women and men [emphasis added]”. “This understanding of gender clarifies that the term ‘gender’ is not to be equated with women”. It is also clear that the CEDAW Committee did not equate a person who may identify as a woman and a man with someone who is a woman or a man – the latter being defined as either biologically male or female.

it is clear that sex and gender are two different concepts. However, international law does not permit any derogation to the prohibition of discrimination against women based on sex. Where tension may arise between the right to non-discrimination based on sex and non-discrimination based on gender or gender identity, international human rights law does not endorse an interpretation that allows either for derogations from the obligation to ensure non-discrimination based on sex or the subordination of this obligation not to discriminate based on sex to other rights . . .
It is my view that international human rights treaties, including CEDAW, prohibit such derogation under any circumstance, including during a public emergency.

Building on the implicit understanding that the word “woman” refers to biological females, the CEDAW Committee’s reference to lesbian women can only be understood to mean biological females that are attracted to biological females.

Thanks for sharing.

This is helpful.

“international human rights law does not endorse an interpretation that allows either for derogations from the obligation to ensure non-discrimination based on sex or the subordination of this obligation not to discriminate based on sex to other rights”

In other words…..

states that disapply the obligation to avoid discrimination based on sex will be in breach of international human rights law

states that place other rights above the obligation to avoid discrimination on the basis of sex will be in breach of international human rights law.

I don't understand legalese so I'm grateful to @Snowypeaks and others for translating. Can I ask those who do understand what is written here, could the following have positive implications for those of us outside Australia where laws are being interpreted differently (e.g. I'm in Scotland where the recent Hate Crime Bill doesn't include sex at all)?

"states that disapply the obligation to avoid discrimination based on sex will be in breach of international human rights law

states that place other rights above the obligation to avoid discrimination on the basis of sex will be in breach of international human rights law."

Yes, is the short answer.

IANAL either, but from what Sally has said in interviews, if the Australian Federal court accepts that this is the only way CEDAW can be interpreted, then it should reinforce the accepted meaning of the word "woman" as a biological female and that our rights are sex-based (as in the first para you quote) and that our rights cannot be restricted under any circumstances (as in the second quoted paragraph).

So any signatory countries which have conflated sex and gender in law, or restricted women's rights to associate, for example, could be argued to be in breach of CEDAW obligations.

Other states wouldn't be obliged to decide the issue the same way, but a positive judgement for Sall based on CEDAW would tip the scales heavily in our favour.
Just my understanding, IANAL.

To PPs
I now realise why some people thought RA was including TW in her definition of woman - but the bit at the end is governed by her interpretation of "woman" as bio female, therefore "transgender" refers to TM.
Apologies, we were talking at cross purposes to some extent.

In addition to knowing that she was using the definition of woman = biology and had distinguished gender, I read it as the intersectionality under discussion was that of sex (i.e., female biology) + at least one other factor:

The CEDAW Committee also took a very strong stance on to intersectionality, i.e., imploring States Parties to take measures to address the discrimination that they may suffer from as a result of both sex and other factors.

That may be bc my understanding of intersectionality is based on Kimberlé Crenshaw's analysis in "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Anti-discrimination Doctrine Feminist Theory and Antiracist Politics" and her TED talk. Demarginalizing was a critique of a US federal court decision that found that there was no discrimination against black women bc GM hired black males to work on its factory floor and white females to work in the office. It did not hire black females. The court looked at sex and race separately and since GM hired both blacks and women, it found no discrimination in its failure to hire black women. It seemed to me that was how intersectionality was being used here (i.e., the person in question is female and has at least one other protected characteristic, which would include trans men but not trans women) but Snowypeaks knows much more about Reem Alsalem's position than I do.

From reading other threads, it seems like others may have a different understanding of intersectionality.

Oh wow on reading this, this Aussie is actually in tears.

I had no idea how heavy the burden of all that loathing has been - DECADES now of an insidious colonisation of all our women only clubs and festivals and rape support groups and child abuse survivor networks and gyms and dance classes and sporting leagues and knitting circles for goodness' sake.
WE MIGHT GET THEM BACK!!!!!!!!!!!!!!!!!!!
I will personally bathe Sal Grover in champagne all the days of her life if she brings us all this back.

Thank you for explaining, this is great news, really gives me hope.

The thread called Tickle v Giggle has more details and also info about crowdfunding - she still needs help. Don't get excited yet because the Australian Fed court may decide against Sall. And even if it decides in her favour, it might not be on the grounds of CEDAW obligations - they might have a different basis.

But she says she will take her case all the way to the highest court in the land if she has to.