Gender as a hyperconstruct in (rare) regional human rights case-law

Abstract

Traditional legal accounts of sex and gender in international human rights law have either erased or emphasised the distinction between the two concepts. According to mainstream interpretations, there are two sexes, on the basis of which gender is constructed as a separate notion. Some of these interpretations conflate sex with gender. Others oppose sex to gender in the same way as nature to nurture and biology to culture. However, differentiation between the two concepts is not that straightforward. This paper demonstrates that alternative understandings to the sex-versus-gender dichotomy are possible, such as those reflected in the Inter-American Court of Human Rights' (IACtHR) advisory opinion OC-24/17 and the European Court of Human Rights' (ECtHR) judgment X v The Former Yugoslav Republic of Macedonia. These decisions are two rare yet paradigmatic examples of what I call a 'hyperconstructivist' approach to sex/gender in the law. Hyperconstructivism goes beyond constructivist ideas of the cultural genesis of gender by considering both sex and gender as cultural by-products. If gender is the social construction of sex and sex the result of a cultural inscription at birth through the lens of gender norms, gender is the construction of a construction, that is a 'hyperconstruction'. Hyperconstructivism applied to human rights norms may serve as a theoretical frame to soften the tensions between the fixity of sex/gender-based legal categories and the ever-changing sexed/gendered nature of human experiences.