—Mara Malagodi, The Chinese University of Hong Kong, Faculty of Law
[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]
In this second post in the two-part series on new frontiers of gender constitutionalism in Asia, I explore the constitutional treatment of gender identity and sexual orientation in the region. Sexual and gender diverse people (SGPD) have made significant yet uneven strides in claiming equal citizenship in the constitutional arena across several Asian jurisdictions. As such, these constitutional innovations warrant detailed and context-specific comparative scrutiny.
Since decolonisation, the great majority of jurisdictions in Asia have adopted in their constitutional and legal frameworks a binary classification of gender as either male or female based on sex assigned at birth, coupled with a heteronormative framing of sexuality. This position reflects a combination of colonial legal legacies (or transplants in the few Asian jurisdictions that were never colonised such as Thailand, Japan, Nepal, and Bhutan) and the cultural and religious norms of dominant groups. The uneven advancement of SGDP rights in the constitutional arena across Asia is explained by the highly context-specific nature of this phenomenon, which hinges on factors internal and external to the constitution. In particular, the strength of social movements and their ability to catalyse change in social attitude towards gender and sexual diversity have a profound impact on legal reform and – most importantly – on the everyday life of queer individuals and groups. Over the last two decades, the constitutional sphere has become both a key instrument to advance SGDP rights and a crucial symbolic target of activism in itself to affirm gender justice.
The advancement of SGDP rights in the constitutional arena can be conceptualised as taking place along two axis: removal of harm (e.g. decriminalisation of certain forms of conduct, constitutional norms and/or legislation forbidding discrimination, etc.) and the granting of positive entitlements (e.g. forms of recognition, affirmative action, quotas, etc.).Read the rest of this entry…