As US Erodes Sexual and Reproductive Rights, International Law Can Be a Lifeline

Scholars and activists are increasingly turning to international law frameworks — such as sexual rights, the right to health and anti-torture human rights law — to hold the U.S. accountable for escalating human rights violations toward cisgender women and transgender people.

“There is a distinct connection with abortion rights and gender-affirming care. They both are being attacked by the far right with the same level of fury, but more importantly, in both cases it’s an attack on personal bodily autonomy,” LGBTQ legislative researcher Allison Chapman told Truthout.

Since Dobbs v. Jackson Women’s Health Organization reversed the constitutional right to an abortion in 2022, two dozen states have banned or greatly restricted the procedure. The states restricting access to gender-affirming care are largely the same states banning abortion; in many cases, the lawmakers supporting abortion bans also later introduced anti-LGBTQ legislation. According to The Network for Public Health Law, as of January, 25 million women now live in states with partial or total abortion bans, while 39 percent of transgender youth find themselves in states where gender-affirming care is illegal.

The Dobbs decision has also been weaponized by the far right to advance anti-trans policy goals. “In states like Alabama, officials have used the Dobbs decision to justify banning gender-affirming care, while leaders in Texas and Florida have pushed to block access through Medicaid and other means,” West Virginian transgender activist Ash Orr told Truthout. “Florida Gov. Ron DeSantis falsely claims a lack of evidence for this care, while Texas Gov. Greg Abbott’s policies have sought to investigate parents who support their transgender children, though these efforts are currently blocked by the courts.”

International law scholars have pointed out that the Dobbs decision likely violates multiple international treaties, including the Convention on the Elimination of All Forms of Discrimination Against Women, the UN’s Convention on the Rights of the Child, the Statute of the International Criminal Court, the Convention Against Torture, the International Covenant on Civil and Political Rights, and the Convention on the Elimination of All Forms of Racial Discrimination. The U.S. is bound by customary international law — law that is so commonly accepted among states that it has become established general practice. Regardless of whether or not the U.S. has ratified individual treaties, the obligations under such law still remain in place.

However, while many of these treaties can be employed to condemn forced pregnancy under abortion bans, they unfortunately fall short in addressing the rights and concerns of transgender people because, as researchers have noted in the Journal of Law, Medicine & Ethics, “international law continues to presume a cisgender binary definition of gender.”

“I view both issues being, at the core, an issue of bodily autonomy,” Chapman said. “International law should be expanded to include recognition of the core human right to bodily autonomy.”

Scholars and activists are currently advancing international law frameworks that would rectify this issue to better protect the body autonomy of not just cisgender women but also trans people by leveraging existing international treaties, customary law and regional human rights mechanisms to address violations.

Sexual Rights and the Right to Health

Legal advocates have created a sexual rights framework that can be used to interpret rights related not only to reproductive health but also to gender identity and bodily diversity in existing treaties. The sexual rights framework is premised on the concept that sexuality is “linked to fundamental questions of personhood, equality, dignity, justice, and citizenship,” legal scholars Mindy Roseman and Alice M. Miller explain.

“Feminist and LGBTQIA+ movements increasingly came to recognize sexual rights as separate and distinct from reproductive rights, with advocates pushing for the inclusion of specific language on both sexual rights and sexual orientation across UN working groups.” Benjamin Mason Meier, a professor of global health policy in the Department of Public Policy and the Department of Health Policy and Management at the University of North Carolina at Chapel Hill, told Truthout.

Sexual rights advocates have successfully pressured international NGOs to adopt a sexual rights framework, creating so-called “soft law,” which includes the publishing of the Yogyakarta Principles in 2007 and 2017. However, international human rights bodies have been cautious to adopt a sexual rights framework, likely because it would disrupt the reification of existing gender binaries in international treaties.

Although the right to health traditionally centered on women’s autonomy, liberty and equality globally, there’s a burgeoning movement to extend this framework to advocate for transgender people’s access to gender-affirming health care.

For example, many international law treaties only name cisgender women as the only people who can be pregnant people, despite the fact that many transgender people are also able to get pregnant. Because of these definitional limitations, it is unclear if transgender people are protected by said treaties despite also being harmed by abortion restrictions. Additionally, this legal erasure of transgender people also inhibits the ability for these treaties to uphold the dignity of transgender people and protect them from discriminatory bans on needed health care.

These definitional issues are caused by the ingrained nature of the gender binary in international law, explains Aoife M. O’Connor et al. in the article “Transcending the Gender Binary under International Law: Advancing Health-Related Human Rights for Trans* Populations.”

“The evolution of international law has sought since the establishment of the UN to protect women’s rights as human rights, yet it has done so in ways that reify a gender binary, addressing discrimination on the basis of ‘sex’ while neglecting gender identity, sexuality, and bodily diversity under human rights law,” O’Connor et al. assert in their article.

Not only does this harm women who do not conform to gender stereotypes, the United Nations Independent Expert on Protection Against Violence Based on Sexual Orientation and Gender Identity asserted in a 2021 report at the 47th UN Human Rights Council, but “violence and discrimination based on sexual orientation and gender identity … also overlap[s]” with violence toward cisgender heterosexual women, because discrimination against these communities “conceptually, socioeconomically, politically and legally reinforce each other.”

Another potential international law framework that overlaps with sexual rights is the right to health. While the United States is among a minority of countries that don’t acknowledge a right to health in their constitutional law and haven’t ratified international treaties specifically establishing such a right, there is an increasing emphasis on health equity within international legal norms.

Additionally, although the right to health traditionally centered on women’s autonomy, liberty and equality globally, there’s a burgeoning movement to extend this framework to advocate for transgender people’s access to gender-affirming health care, which international law scholars pinpoint as having started with the 1979 formation of the World Professional Association for Transgender Health.

In 2000, the UN Committee on Economic, Social and Cultural Rights published a general comment establishing a framework that supports the idea that a person should have autonomy in making decisions about their health. Within this general comment, the committee specified certain freedoms, including “the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation.” In another comment in 2016, the committee explicitly said that states are required to ensure the availability and accessibility of sexual and reproductive health facilities to comply with their responsibilities under the covenant.

Additionally, the right to health has been interpreted as being included in treaties that do not expressly contain a right to health provision, such as the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. International organizations like the World Health Organization (WHO) have also detailed a right to health, including reproductive health, and the WHO is currently developing a guidance on gender-affirming care.

“Given the range of obstacles that trans persons must overcome to achieve health, the human right to health (alongside a rights-based approach to health) offers a road map to realize gender self-determination, freedom of expression, bodily autonomy, respect and an expansive vision of health around which advocates, policy makers, trans patients and communities can come together,” Meier told Truthout. “Situating trans health within inclusive and comprehensive national health policies for universal health coverage can ensure equal access to gender-affirming health care and public health services without interference or discrimination.”

While the U.S. is unlikely to adopt national health policies for universal health coverage, these international law frameworks can support people capable of becoming pregnant and transgender people now by espousing legal arguments that U.S. courts may be more receptive to and demanding that international bodies hold the U.S. accountable to its international obligations.

“I think the best arguments that can leverage human rights are the arguments about nondiscrimination and equality. Because those concepts are well established in our constitutional law,” Mindy Roseman, the director of International Law Programs and director of the Gruber Program for Global Justice and Women’s Rights, told Truthout, adding that these international law frameworks “may bolster these claims.”

The UN’s Committee against Torture has found that some reproductive rights violations may constitute torture.

For example, after a March report by Lift Louisiana, Physicians for Human Rights, Reproductive Health Impact and the Center for Reproductive Rights identified a “constitutional, human rights, public health, and medical ethics crisis” unfolding in Louisiana, the organizations sent a letter to the Human Rights Committee Secretariat, urging the committee to condemn the regression of abortion rights in the U.S. and to advocate for the passage of the Women’s Health Protection Act, the repeal of restrictive legislation and adherence to the World Health Organization’s abortion care guidelines. The letter emphasized that marginalized groups — especially Black, Indigenous and LGBTQ+ people — are disproportionately affected by Louisiana’s trigger ban and notes the connection between the state’s stringent abortion ban and its hostile climate for LGBTQ people.

When Reproductive Restrictions Constitute Cruel, Inhuman or Degrading Treatment

There is also the potential for the Convention against Torture to be used to uphold people’s access to abortion and gender-affirming care. The convention defines torture as the deliberate and unlawful imposition of intense physical or mental pain or suffering, sanctioned by a public official, with the intent of punishment, discrimination, intimidation or extracting a confession. The UN’s Committee against Torture has clearly determined that total abortion prohibitions could breach the convention by endangering women’s health and lives, or by subjecting them to significant physical or psychological anguish. The committee has also proposed that abortion should be lawful in circumstances where a pregnancy could result in significant physical or mental distress for a woman. Furthermore, the committee has stated that refusing access to or placing restrictions on abortion, where it is otherwise lawful, could also be considered a breach of the convention.

Specifically, the UN’s Committee against Torture has found that some reproductive rights violations may constitute torture rather than ill-treatment because they are manifestations of systematic discrimination against women. Article 1 of the Convention against Torture states that an offense may be elevated to torture when it is performed for an impermissible purpose, including “discrimination of any kind,” which includes discrimination based on gender.

Because the Convention against Torture is one of the few applicable conventions that the U.S. has signed and ratified, international nonprofit organizations have increasingly asserted that the denial of abortion care in the U.S. violates the country’s obligations. In fact, some nonprofits, such as Human Rights Watch have not only asserted that the U.S. has adopted abortion policies that amount to cruel, inhuman or degrading treatment but have also said that the denial of gender-affirming care constitutes a violation of freedom from such treatment, as research shows that unaddressed dysphoria in transgender youth correlates with significant mental health issues such as depression, social anxiety, and suicidal ideation and behavior. A recent study published in Nature Human Behavior revealed that anti-trans bans may have resulted in as high as a 72 percent increase in suicide attempts among transgender people, compared to states without these laws.

Given the deep connections between attacks on abortion access and gender-affirming care, it is crucial to employ a unified rights-based approach to protect bodily autonomy for both LGBTQ people and cisgender women. “I think we need all of [these international law frameworks] as they mobilize different constituencies,” Roseman told Truthout. “Insofar as the U.S., what we are talking about are social movement claiming and possibly state court/constitutional developments.”

By leveraging the frameworks of sexual rights, the right to health and anti-torture human rights law, advocates can effectively campaign for abortion access and gender-affirming care without reifying gender norms and erasing transgender people from legal protections. “Everyone, including trans people, deserves access to abortion and gender-affirming care in their own communities and on their own timeline,” Orr told Truthout. “Despite attacks on our autonomy, our communities remain resilient and committed to ensuring access to comprehensive care for all.”