The Conditions for Obtaining Legal Gender Recognition: A Human Rights Evaluation

principles. Article 38(1)(d) specifically identifies “judicial decisions” as a subsidiary 215 Michael Ignatieff, Human Rights and Idolatry (Princeton Press 2001) 95. 216 Bantekas and Oette (n 14) 10. 217 ibid. 218 In the United Kingdom, although the ECtHR refused, for almost two decades, to recognise a right to gender recognition, the language of human rights was used in making the case for legal recognition – both in terms of advocacy before the ECtHR but also within domestic politics. Even before Goodwin v United Kingdom ([2002] 35 EHRR 18), the UK Government had been convinced to begin laying the groundwork for a gender recognition regime; see, Ralph Sandland, ‘Feminism and the Gender Recognition Act 2004’ (2005) 13(1) Feminist Legal Studies 43; Alex Sharpe, ‘Gender Recognition in the UK’ (2009) 18(2) Social and Legal Studies 241. 219 In the United States, the legal movement towards marriage equality, which culminated with the US Supreme Court recognising a general right to same-gender marriage in 2015 (Obergefell v Hodges [2015] 576 US), only began to experience success once wider social inclusion for gay, lesbian and bisexual persons had begun to be achieved, see: Molly Ball, ‘What Other Activists Can Learn From the Fight for Gay Marriage’ (The Atlantic, 14 July 2015) https://www.theatlantic. com/politics/archive/2015/07/what-other-activists-can-learn-from-the-fightfor-gay-marriage/398417/ accessed 15 May 2017. Mullally argues that, in Ireland, incremental social awareness and acceptance was a vital step towards greater legal rights, see generally: Una Mullally, In the Name of Love: The Movement for Marriage Equality in Ireland (The History Press Ireland 2014). 220 Javaid Rehman, International Human Rights (n 5) 22. 73 means for determining the rule of law. While these decisions must be understood in their specific regional or national contexts, and not be presented as internationally enforceable, they are nonetheless valuable in contextualising and clarifying international norms. Chinkin writes that regional and domestic litigation “fleshes out and develops international.treaties and customs. ” Applying human rights principles to live disputes, such litigation frequently has a “greater influence than might be expected for a subsidiary [source]. ” Where there is ambiguity over the precise contours of international norms, regional or national judgments offer guidance on the appropriate limits. Judicial decisions have been particularly influential in defining the contours of trans protections. In the absence of treaty law and custom, regional and national courts have established a substantial jurisprudence on trans human rights. Domestic adjudicators, in jurisdictions such as the United States, were among the first actors to validate preferred gender. In recent years, national judges – from Australia to Argentina – have led the application of human rights to gender recognition. They are now joined by regional tribunals, most notably the ECtHR, which, in a series of landmark judgments, is increasingly examining conditions of recognition. This thesis draws upon that wealth of regional and national case law to better understand how international human rights influence legal transitions.