How did you come to choose your research topic?

I chose the topic of my research out of a desire to understand how the gender binary, which presupposes the existence of two complementary and hierarchically different gender categories (men/women), could become an element structuring people’s social and legal relations. Moreover, I have closely followed and supported the struggles to gain the right to change the legal gender on identity documents by trans persons and some intersex persons. Seeing how legal gender categories can negatively impact the wellbeing of certain individuals, I started to question why gender remains a legal category that forms part of people’s legal identity. I consequently decided to research this question by focusing on international law. 

Can you describe your thesis questions and the methodology you use to approach those questions?

The question that guided my research was: “How and to what effect is international law implicated in the formal gendering of individuals’ legal identity?” I answered this question by drawing on a transdisciplinary research approach, which aims to understand a subject in its entirety. I thus examined not only legal aspects of legal gender categories, but also their political implications, social impacts and historical developments.

A core aspect of my methodology was the reliance on queer and feminist theories for interpreting international legal sources. I drew on the work of many different feminist and queer theorists, since showcasing and working with the plurality of queer-feminist approaches was central to my thesis. I was especially attentive to power struggles within international queer-feminist movements, such as those based on the North/South dichotomy, structural racism and colonial legacies. Jasbir Puar’s (2007) insight that gender gains its meaning in relation to other social categories, such as race and religion, in current international relations provided a crucial input in my research. 

Another core element of my methodology to understand and illustrate the productive effects of assigning gender categories was “assemblage thinking” (Deleuze/Guattari 1987). Over the course of my PhD, I realised that the effects of international norms on legal gender categories depend on their entanglement with and relations to other norms from other normative orders (Krisch 2021). These other normative orders can originate from the international, transnational, domestic and local levels, and include state law and non-state law. Assemblage thinking thus provided me with the framework to take into account the role of legal pluralism in creating the effects of norms regulating the legal gender registration. It served me as a queer-feminist method, as it allowed putting at the centre of the analysis feminist concerns about difference and universalism as well as the idea of law as a system of relations.

What are your major findings?

One of the main findings of my thesis is that international law has played a significant role in creating a world where most people, at least those with official documents, carry a legal gender category as part of their legal identity. For instance, I found that most states did not mention a gender marker on their passports until the 1980s. Yet, in 1980, the International Civil Aviation Organization adopted the first standards on machine-readable travel documents that asked states to include a gender marker on these documents. As a consequence, many states introduced gender markers on their passports, resulting in the situation that nowadays all states show gender information on their passports. I found this example enlightening because it revealed the influence of international organisations on the use of gender as a criterion for personal identification. 

Another finding of my thesis is that colonialism and the continuation of colonial practices in international law have significantly influenced the nowadays universal use of gender as a binary legal category assigned to individuals. I traced the history of assigning a binary legal gender to individuals by state authorities in four states, Brazil, England, France and Senegal. This showed that colonial and postcolonial states often established a binary legal gender registration during colonial rule or in the aftermath of formal decolonisation when they were under the pressure to create bureaucratic systems similar to those of their previous colonisers. It is certainly possible that the binary gender registration would have also come about as a universal state practice without colonialism. However, my case study analysis showed that colonial practices indeed played a role in universalising the binary gender registration. 

I further found that international legal institutions, such as the Inter-American Court of Human Rights, increasingly recognise the right of individuals to change their legal gender. However, they have not yet questioned why gender is a legal identity marker in the first place. Instead, they continue to treat gender as a legitimate characteristic that is noted on official documents and forms part of people’s official identity. This, I argue, reflects a liberal rights logic where previously excluded subjects, such as trans persons, get included into the established system of privileges, instead of dismantling the entire system that creates privileges for some people based on their (legal) gender. 

Can you give examples of topical issues on which your thesis helps shed light? 

My thesis provides, for example, input into current discussions on the transformative potential and human rights impacts of introducing “third” legal gender categories. It also helps to shed light on the potential effects of abolishing the legal registration of a gender at birth entirely. Another contribution of my thesis is to advance discussions on homonationalism and pinkwashing in international law, highlighting power inequalities currently manifested and reproduced in international politics on gender relations. 

What could be the social and/or political implications of your thesis? 

As I discuss in my thesis, the assignment of a binary legal gender can create experiences of violence and discrimination, especially for gender non-conforming persons. This means that reforms of the permanent assignment of a binary legal gender to individuals are important steps to ensure human rights. My thesis can inform these reforms as it analyses the effects of current and potential changes in the legal gender registration.

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On 20 December 2021, Lena Holzer defended her thesis in International Law on “The Binary Gendering of Individuals in International Law: A Plurality of Assembled Norms and Productive Powers of the Legal Registration of Gender”. The jury members were Professor Janne Nijman (chair and internal examiner), Professors Paola Gaeta and Elisabeth Prügl (co-supervisors) and Professor Dianne Otto (external examiner).
To access the PhD thesis please contact Dr Holzer at lena.holzer@graduateinstitute.ch.

Citation of the PhD thesis:
Holzer, Lena. “The Binary Gendering of Individuals in International Law: A Plurality of Assembled Norms and Productive Powers of the Legal Registration of Gender”. PhD thesis, Graduate Institute of International and Development Studies, Geneva, 2022.

Read also a related article in AJIL Unbound by Bérénice K. Schramm and PhD Researchers Juliana Santos de Carvalho, Lena Holzer and Manon Beury: “Doing Queer in the Everyday of Academia: Reflections on Queering a Conference in International Law”.

Banner picture: excerpt from an illustration by Danko Mykola/Shutterstock.com.
Interview by Nathalie Tanner, Research Office.