In June 2018, Lithuanian president Dalia Grybauskaite submitted to the national parliament the Council of Europe Convention on preventing and combating violence against women and domestic violence — known as the Istanbul Convention — for ratification. Entered into force in 2014, the Convention provides a comprehensive set of policy and legal measures to prevent and prosecute violence against women and protect the survivors.
Yet the treaty is bound to face political opposition, as demonstrated by the earlier parliament’s decision to put on hold its ratification. The main reason for the delay was the use of the term ‘gender’ in the Istanbul Convention. In accordance to Article 3c, ‘gender’ means ‘socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men’. The term is central to the Convention since it depicts violence against women as gender-based. In other words, it views gender violence as a consequence of power inequalities between men and women, which are rooted in sociocultural norms. The critics in Lithuania assert that the concept of ‘gender’ is unfamiliar to national law. It is further argued that the treaty challenges binary sex system and paves the way to the recognition of lesbian, gay, bisexual and transgender (LGBT) people.
This post, however, asserts that the concept of ‘gender’ has been long present in national law consequent to the country’s entry into two international treaties, 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the 1998 Rome Statute of the International Criminal Court (ICC). Relatedly, existent gender obligations are highlighted, including those owed to LGBT people.
CEDAW: promoting gender equality
The ruling Lithuanian Farmers and Greens Union party previously suggested that CEDAW, which Lithuania ratified in 1994, provided a sufficient framework to tackle violence against women. As a treaty dedicated to the elimination of discrimination against women, it is absent of the term ‘gender’ and is believed to overlap with the Istanbul Convention.
Such arguments are defective. CEDAW does not contain a specific provision on violence against women. It is true that CEDAW uses the term ‘sex’, not ‘gender’; in substance, however, CEDAW is in alignment with the Istanbul Convention insofar both treaties require the state parties to undertake measures altering proscribed gender roles. For instance, CEDAW mandates the state parties:
‘To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women’ (Article 5a).
‘To eliminate ‘any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim’ (Article 10c).
Appreciation of sociocultural factors is also evident in general recommendations of the Committee on the Elimination of Discrimination against Women, the treaty monitoring body. General Recommendation 28, for example, stipulates that ‘although the Convention only refers to sex-based discrimination . . . [it] covers gender-based discrimination against women. The term ‘gender’ refers to socially constructed identities, attributes and roles for women and men’. The addition of ‘gender’ to the Committee’s documents does not conflict with CEDAW. On the contrary, it provides the name to the addressed social dimension of inequality between women and men. The name, which entered a vocabulary of international law only in 1990s, after CEDAW was made.
The genie is out of the bottle: just as resistance to the concept of ‘gender’ due to its newness appears to be ungrounded, so does the belief that Lithuania does not have commitments to LGBT persons seems to be false. As Article 1 of CEDAW demonstrates, the treaty is a non-discrimination instrument targeting ‘any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing . . . of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field’. It may therefore be applicable, for example, to lesbians whose rights to marriage, health care and employment are adversely affected owing to heteronormative impositions.
The Rome Statute and the pioneer legal definition of ‘gender’
The Rome Statute may seem to have little relevance to the debates surrounding the Istanbul Convention and violence against women. It established a permanent international criminal court which has the jurisdiction to prosecute individuals over the crimes of genocide, crimes against humanity, and war crimes. Yet for the purpose of this article, the Rome Statute significant, since it was the first international treaty to define ‘gender’. Its ratification by Lithuania in 2003 demonstrates that the country encountered the term; and was presented the opportunity to engage the concept through its translation.
In accordance to Article 7(3) of the Rome Statute, ‘gender’ refers to the ‘two sexes, male and female, within the context of society’. This rather peculiar conceptualisation has a clear deterministic foundation: it acknowledges only two sexes, male and female. As I contended elsewhere, it may consequently exclude intersex individuals who are neither female nor male: they possess a combination of male and female genitalia, or have ambiguous genitalia.
The phrase ‘within the context of society’, meanwhile, enables the ICC to consider contextual factors, including gender roles, social attitudes, and sexual orientation. Article 7(3) has the scope of accommodating LGBT persons since most of them identify themselves as either male or female, yet they tend to experience discrimination due to non-adherence to heterosexual norms. The social construction of gender has also been highlighted by the ICC Office of the Prosecutor. Its 2014 Policy Paper on Sexual and Gender-Based Crimes explains that the definition of ‘gender’ ‘acknowledges the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys’. Alas, the sociological component is lost in the Lithuanian translation of Article 7(3); in effect, it conflates ‘gender’ with ‘sex’.
So the Istanbul Convention would neither introduce the term ‘gender’ nor impose the requirement of LGBT-inclusive gender equality — both have been part of Lithuanian international responsibilities. It would, however, assist the country in addressing the root causes of gender-based violence, criminalise the latter adequately, and implement victim-centred protection and support measures.