Is Sex Synonymous With Gender?

    A personal opinion for debate by a Costa Rican female politician: Alexandra Loria

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    There are many women who oppose the movement in favor of transsexuality questioning rights or accessing specific spaces only for women. In 2019, the famous British writer J. K. Rowling posted on her Twitter account: “Dress however you want. Call yourself whatever you want. Go to bed with any consenting adult. Live the best life in peace and safety. But forcing women to quit their jobs for claiming that sex is real?” then added the tag #IamwithMaya.

    This is how she supported a British researcher – Maya Forstater – who lost her job after stating that people cannot change their biological sex. Along with Rowling, there are many women who are opposed to the movement in favor of transsexuality questioning rights or accessing specific spaces only for women.

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    The Inter-American Court decision

    A judgment was recently handed down in the Inter-American Court in the case of Vicky Hernández et al. V. Honduras, where this issue was discussed. Vicky Hernández was a trans woman, sex worker, and activist. Although the Court unanimously declared that: “The State is responsible for the violation of the right to life, contained in Article 4.1 of the American Convention on Human Rights, in relation to Articles 1.1, 8 and 25 of the same instrument, as well as the violation of the right to personal integrity, contained in Article 5.1 of the American Convention on Human Rights, to the detriment of Vicky Hernández ”, two interesting dissenting votes were cast, one by Judge Odio Benito and the other of the judge Vio Grossi.

    They departed from the majority decision that ruled that the State of Honduras was also responsible for non-compliance with the obligations established in Articles 7.a and 7.b of the “Inter-American Convention to Prevent, Punish, and Eradicate Violence against Women”, also called the Convention of Belém do Pará.

    Judge Odio Benito argues for not applying this Convention: “We must, first of all, make essential fundamental clarifications on basic concepts from which we start in this exhibition: sex, gender and gender identity. Sex and gender are categories that were never interchangeable because they are not synonymous and they never were. With the development of psychology and the social sciences, especially of the entire feminist theory of the mid-twentieth century, it begins to be clearly marked that sex is biological; supported by science, it is defined by the anatomical, genetic and physiological differences of men and women, never a social construction, much less a subjective question or a feeling. For its part, gender is a social construction. It refers to the behavior patterns usually attributed to men and women. It is made up of prejudices, stereotypes, hierarchies, power differences between men and women”.

    The judge continues to allege that “gender identity” is defined as: “The internal and individual experience of gender as each person feels it, which may or may not correspond to the sex assigned at birth, including the personal experience of the body (which may or may not involve the modification of appearance or bodily function through medical, surgical or other means, as long as it is freely chosen) and other gender expressions, including clothing, the way of speaking and manners”.

    Neutral as undefined

    He ends by stating that he opposes the application of the Convention of Belém do Pará because: “Without any scientific basis, it is intended that “gender identity”, a feeling that can even change from one day to the next, replaces and erases sex with which it was born. We will no longer speak of women and men with their own characteristics, but of “people”. In neutral, in undefined. It seems that “gender” -cultural construction- also disappears. Everything turns to the only existence of “gender identity”, individual and personal experience of each one of us. With the aggravating circumstance that gender was never considered an identity”.

    On the other hand, briefly, Judge Vio Grossi alleges that he opposes the application of the Belém do Pará Convention, based on Article 31.1 of the Vienna Convention on the Law of Treaties, which provides that: “A treaty it must be interpreted in good faith in accordance with the ordinary meaning to be attributed to the terms of the treaty in their context and taking into account its object and purpose”.

    He continues to justify his opposition by saying: “Thus, and bearing in mind that the Convention of Belem de Pará does not give the aforementioned term a “special meaning”, one must resort to its “ordinary meaning”, which implies that, by “woman” it is understood as a “person of the female sex”.

    It should be added that “feminine” means “belonging to or related to a woman”, “belonging to a woman or possessing characteristics attributable to “her” or “said of a being: endowed with organs to be fertilized”. Thus, there is no doubt that the conventional norm that is interpreted refers exclusively to the “woman” in consideration of her sex, that is, the female, omitting any allusion to the “trans woman”.

    I agree with the position of Rowling, Forstater, Odio Benito and Vio Grossi. I now understand why G.K. Chesterton wrote: “The day will come when a sword will have to be drawn for claiming that the grass is green.” Sadly it seems that day has come.

    Resonance Costa Rica

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