Queering Prisons: A Socio-Legal Paradigm Shift from Sex to Gender in International Law

Proceedings of The 5th World Conference on Research in Social Sciences

Year: 2023



Queering Prisons: A Socio-Legal Paradigm Shift from Sex to Gender in International Law

Qirui Jiang




There are only a few issues where domestic laws in countries like India appear more progressive than international human rights laws. Transgender incarceration is one of them. In an increasing number of countries, the criminal justice system has developed towards a social approach of regulating non-conforming gendered bodies, replacing the immutable, binary conception of sex with the self-determination theory of gender identity in legislative and judicial discourses. On the other hand, developments in international human rights laws protecting prisoners insist on a binary and biologically deterministic understanding of sex/gender. This article illustrates this uncritical insistence with examples from the Nelson Mandela Rules and, to counter it, argues for queering the international human rights laws. That is, the international regime should move towards a performative, liberatory understanding of gender, which is necessary for making visible and protecting the specific rights of transgender prisoners. To do so, the current regime not only should horizontally cross-fertilize with progressive international instruments affording gender and sexual rights, namely the Yogyakarta Principles, but vertically draw competencies from domestic laws. This article provides examples from England and Wales and India that illustrate the self-determination theory of gender identity. Unlike other issues where developments in international laws drive domestic legal reforms, transgender incarceration also requires a bottom-up approach to locate and accommodate diverse transgendered experiences cross-culturally. Queering, therefore, does not only indicate reforming the law as exclusively informed by queer theory but embracing the possibilities of gendered experiences opened by myriad, local understandings of sex/gender.

keywords: gender identity, incarceration, international human rights law, queer theory, transgender