Protecting Transgender Women within the African Human Rights System through an inclusive reading of the Maputo Protocol and the proposed South African Development Community Gender-Based Violence Model Law

Tegan Snyman, Annika Rudman*

*Corresponding author for this work

Research output: Contribution to journalArticleAcademicpeer-review

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Abstract

Under Article 1 of the Maputo Protocol “women” are defined as “persons
of the female gender”. Notwithstanding this definition, transgender women,
persons whose gender is female but who were assigned male at birth, are
yet to be recognised or protected under the Protocol. On the contrary, on
the African continent, transgender women are some of the most vulnerable
persons in society. Due to their frequent misidentification as homosexual
men, and widespread criminalisation of homosexuality, these women
are regularly discriminated against and victims of stigma and violence.
Furthermore, because of the denial of their gender identities, these women
are deprived of their legal recognition and subsequent protection of their
human rights. This article considers discrimination against transgender
women and contrasts it with the provisions of the Maputo Protocol. This
article utilises the teleological approach to treaty interpretation, together
with postmodern intersectional feminist legal theory and queer legal theory
as well as fundamental principles of international human rights law such as
dignity, equality and non-discrimination. Finally, the article considers the
recognition and protection of transgender women in light of the proposed
SADC GBV Model Law.
Original languageEnglish
Pages (from-to)57-77
Number of pages21
JournalStellenbosch Law Review
Volume33
Issue number1
Publication statusPublished - 1 May 2022

Research programs

  • SAI 2010-01 RRL

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