Sex/Gender Segregation: A Human Rights Violation, Not a Protection

Abstract

This Article argues that human rights law should be interpreted to prohibit sex/gender segregation in all contexts, including education, employment, bathrooms, prisons, and sports, because of the gendered harms it produces. Prohibiting sex/gender segregation would constitute a departure from the current approach of international and regional human rights mechanisms, which has been to discourage sex/gender segregation in education and employment, require it in bathrooms and prisons, and devote little attention to it in other contexts, such as sports. This departure is needed because sex/gender segregation, no matter the context, perpetuates and reinforces gender stereotypes to the detriment of everyone, especially women and LGBTI persons. Since international law requires States to modify harmful gender stereotypes and eliminate wrongful gender stereotyping, States have an international obligation to eliminate sex/gender segregation regardless of the context in which it occurs. Common arguments in favor of sex/gender segregation, arising out of protection, choice, and culture, do not prevent human rights mechanisms from finding that international law prohibits sex/gender segregation, but these concerns should be taken into consideration when proceeding toward the elimination of sex/gender segregation. Implementation of this prohibition on sex/gender segregation will need to be gradual and context-specific.