Transgender genocide

Transgender genocide or trans genocide (also transgendercide) describes the targeting of transgender people as part of wider genocides, as well as describe an elevated level of erasure, systematic discrimination, and violence against transgender people. The term is related to the common meaning as well as the legal concept of genocide, which the Genocide Convention describes as an intentional effort to completely or partially destroy a group based on its nationality, ethnicity, race, or religion. Some legal scholars and transgender rights activists have argued this definition should be expanded to include transgender persons.

Scholarship

International law The acts that are constituent to the crime of genocide in the Genocide Convention, when perpetrated against transgender, non-binary, and intersex people as groups, are not viewed legally as genocide, but as crimes against humanity. Some scholars have argued that the definition of genocide should be applied to transgender persons, or expanded to cover transgender persons, because they are victims of institutional discrimination, persecution, and violence. Caitlin Biddolph in analyzing the International Criminal Tribunal for the former Yugoslavia highlights how queer people have been repeatedly ignored as victim groups in the Genocide Convention due to being perceived as non-reproductive groups as opposed to the groups listed in the convention. Similarly, Jess Gifkins and Dean Cooper-Cunningham highlight how lesbian, gay, and transgender populations have only been received passing mention in scholarship of the responsibility to protect. In a 2008 academic article in the Journal of Hate Studies, Jeremy Kidd and Tarynn Witten argue that the abuse and violence against transgender people would qualify as genocide as defined by the Genocide Convention, if the definition was expanded to include gender identity and sexual orientation. In line with the convention, they argue that transphobic discrimination and violence are not random or atomized, but rather come from the intent "to eradicate a group of people who violate a widely held and popularly reinforced norm of binary gender with a connection to heteronormative sexuality." They say that this motive of "eradication/annihilation" is systemic, pandemic, institutionalized (e.g., through the penal system and military), and spread widely through media and film. They say that transgender people face an increased risk of abuse and violence throughout their lives and that, despite being targeted in ways that fit some criteria of the Genocide Convention, they do not have access to the same legal protections as other groups. This is supported by others such as Brayan Alexander Chávez Rivera who argues that acts defined in the convention are carried out with the intent to destroy LGBTQ people as a group, and L. June Bloch who describes how many of the bills and laws enacted by U.S. legislatures in recent years fit the detailed genocidal acts of the convention, but as transgender people do not constitute one of the protected groups of the convention the attempts to cause "serious bodily or mental harm and inflicting conditions calculated to bring about the destruction of a group" is not classed as legally genocidal. Neiha Lasharie points out how widespread and systemic persecution of transgender people, if not genocide, may amount to the crime against humanity of persecution. Shannon Fyfe states that while the actions of U.S. governments and legislatures do not meet the legal charge of genocide, due to transgender people not being one of the protected classes, this is a failure of the law, and that the actions of various state legislatures shows genocidal intent against the transgender community. The Rome Statute, a 1998 treaty that established the International Criminal Court and codified investigations into genocide, outlines a definition of gender-based persecution. This definition, however, only "refers to the two sexes, male and female." Valerie Oosterveld attributed this definition to conservative political pressure from states like Azerbaijan, the Holy See, and some nongovernmental organizations in the lead-up to the treaty's adoption. While this definition has not yet been litigated at the ICC, it is likely that it would be used to exclude transgender people from international legal protections. In a 2014 article, Brian Kritz assessed the ability of the International Criminal Court to protect and promote transgender rights, arguing that existing law should be explicitly extended to transgender people. He noted that the lack of existing protections for transgender people under international law was in-and-of-itself "a violation of the basic human rights of the global transgender and intersex populations." Scholars have made similar arguments regarding the legal definition of crimes against humanity. In the past, international courts have interpreted genocidal sexual violence to be a problem of cisgender women alone, often classifying the same systematic sexual violence against all members, who are not cisgender women, as crimes against humanity, as was done by the United Nations International Fact-Finding Mission for Myanmar. David Eichert argues that this interpretation "discounts the suffering of victims and needlessly weakens attempts to identify, prevent, and punish the crime of genocide" and pleads for the field to adopt a broader understanding of genocidal sexual violence, which is not limited to cisgender women alone. While the International Criminal Court has not yet adjudicated on sexual violence in genocide, in Prosecutor v Ntaganda it accepted that cisgender men could be victims of sexual violence. Later the Office of the Prosecutor's 2023 Policy on Gender-Based Crimes connected gender-based violence to genocide, and included "LGBTQI+ people" in its understanding of "gender-based violence".

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