1

Mandate of the Special Rapporteur on violence against women and girls

Position paper on the definition of “woman” in international human rights treaties, in

Background: In March 2024, I made an application to submit an amicus brief in the case of Roxanne Tickle versus

Giggle for Girls Pty Ltd & Anor (NSD1148/22). I was not granted leave to intervene by the Federal Court of Australia

on grounds that the submission was made late. I was asked instead to provide input to the Australian Human Rights

Commission, which is intervening in this case, on the meaning of the word “woman” in the Convention on the

Elimination of All Forms of Discrimination against Women and Girls (CEDAW) by the 18

done. I conveyed my expectation that given my application, the Australian Human Rights Commissioner would

bring my submission to the attention of the Australian Federal Court and other parties. At the time of sending my

submission to the Commissioner, I had copied the respondents’ solicitor on the communication, acknowledging

Convention on the Law of Treaties (1969) mandates that treaties be interpreted “in good faith

in accordance with the ordinary meaning to be given to the terms of the treaty in their context

and in the light of its object and purpose”.

take into account – together with the context in which a treaty was concluded – any relevant

rules of international law applicable in the relations between parties” and any subsequent

practice.

In this case, the meaning and practice attached to the definition of “non-discrimination based

Special Rapporteur on violence against women, its causes and consequences 30 years ago

stated in its preambular section that the Commission on Human Rights was: "Reaffirming that

discrimination on the basis of sex is contrary to the Charter of the United Nations, the Universal

Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination

Vienna Convention on the Law of Treaties (opened for signature 23 May 1969, entered into force 27

January 1980) 1155 UNTS 331, art. 31.

Ibid.

2

Such an understanding of the intention and objective behind the term sex goes beyond a mere

reasonable interpretation, especially since the word “gender” was not defined at the time in

any international human rights treaty leading up to CEDAW. Following the adoption of CEDAW,

the Rome Statute of the International Criminal Court included the term “gender”; however it

was defined as referring to two sexes, male and female.

It can therefore be inferred that the

understanding of States that are parties of international treaties such as CEDAW, supported

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”.

identify as a woman and a man with someone who is a woman or a man – the latter being

While not addressing or defining the terms “sex” or “gender”, many foundational human rights

States have an obligation to guarantee non-discrimination in the enjoyment of human rights,

including based on sex (i.e. biological sex). Articles 2 and 3 of the ICCPR mandates States

Parties to take all steps necessary, including the prohibition of discrimination on the ground of

sex, putting an end to discriminatory actions, both in the public and the private sector which

impair the equal enjoyment of rights by women.

Based on the above analysis of relevant international law, it is clear that sex and gender are

two different concepts. However, international law does not permit any derogation to the

July 2002) 2187 UNTS 90, art. 7(3).

Committee on the Elimination of All Forms of Discrimination against Women (CEDAW Committee),

'General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the

Convention on the Elimination of All Forms of Discrimination against Women' (16 December 2010) UN

Doc CEDAW/C/GC/28, para. 5.

Chinkin et al, the UN Convention on the Elimination of All Forms of Discrimination Against Women: A

Commentary, p. 17

Chinkin et al, the UN Convention on the Elimination of All Forms of Discrimination Against Women: A

Commentary, p. 15

CEDAW Committee, General Recommendation No. 28, para. 4.

3

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. Such a reading

is supported by the General Recommendation No. 25 of the CEDAW Committee which states

that “biological as well as socially and culturally constructed differences between women and

men must be taken into account [emphasis added]”.

It is my view that international human rights treaties, including CEDAW, prohibit such

derogation under any circumstance, including during a public emergency. While some treaties

before the law and freedom from discrimination, protected by article 26, requires States to act

against discrimination by public and private agencies in all fields”.

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. Such a conclusion can be inferred from its

description of the term “lesbian” as reflected in the Committee’s view under article 7(3) of the

Optional Protocol concerning communication No. 134/2018, which refers to “same sex sexual

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. Specifically, in its General Recommendation No. 28, the

CEDAW Committee has explicitly recognized lesbian women as part of the groups of women

who are particularly vulnerable to discrimination through civil and penal laws, regulations, and

customary law practices. The Committee has also considered that the rights enshrined in the

Convention belong to all women, including lesbian women, and that Article 16 of the

and the existence of which is officially proclaimed, the States Parties to the present Covenant may take

measures derogating from their obligations under the present Covenant to the extent strictly required by

the exigencies of the situation, provided that such measures are not inconsistent with their other

obligations under international law and do not involve discrimination solely on the ground of race, colour,

sex, language, religion or social origin”. https://www.ohchr.org/en/instruments-

mechanisms/instruments/international-covenant-civil-and-political-rights.

Doc HRI/GEN/1/Rev.9 (Vol. I), para 13.

4

was inextricably linked to other factors that affect their lives and which include “being lesbian,

bisexual, transgender, or intersex”

* The Special Rapporteur on violence against women and girls, as a Special Procedures