A Critical Lens on the Protection of Sexual and Gender Minorities under International Human Rights Law

In this article on Opinio Juris I cast a Critical eye on the emerging jurisprudence of the Human Rights Committee, and the European and Inter-American Courts of Human Rights, concerning violence against sexual and gender minorities.

In my view, in order to effectively and thoroughly address this violence, the law must reckon with its intersectional and performative nature. People are placed at risk not only by how they identify, but by how they are perceived in relation to what is considered ‘normal’. As things stand, for several reasons, the Inter-American Court has come further and been more explicit than the others in its recognition of this.

This article is based on data I collected for my Master’s thesis, which I’m currently trying to publish. If anyone would like the longer version, and the dataset, please drop me a message.

A big thanks to Angela Mudukuti for her helpful advice and feedback.

On Moyn’s Critique of the Compatibility between Human Rights and Neoliberalism.

A good eighteen months ago I had the opportunity, though my studies, to engage with some of the profound and incredibly important critiques of human rights law (IHRL), most notably from the left. In this post, I’ll relay my reflections on Prof Samuel Moyn’s critiques of IHRL’s relationship to neoliberal economics as best demonstrated by his 2018 book, Not Enough.

International human rights law has arrived at a crucial moment in its history, which some have referred to as a crisis of legitimacy. [1] In no small part responsible for this is the failure of its institutions and most prominent representatives to thoroughly engage with questions of political economy, particularly as they relate to the ‘neoliberal’ economic model which emerged from its violent experiments of the 1970s ‘virtually unscathed’[2] and swept the globe in the aftermath of the Cold War. Foremost among the critics of human rights in this regard has been Prof Samuel Moyn, who has pointed in particular to human rights’ failure to reckon with economic inequality in favour of a minimalist, subsistence-oriented commitment to economic and social rights as a key issue.[3] For Moyn, indeed, human rights and neoliberalism, along with the rampant economic inequality it has brought with it, are quite compatible: given their humble ambitions in the economic and social sphere, he finds it quite possible to imagine a world in which human rights are fully realised while accompanied by the worst economic inequalities imaginable.

Moyn’s critique is indeed insightful and helpful, and in Section II I will explore this briefly in relation to the human rights situation in Mexico. It is my contention, however, that an emancipatory account of the relationship between IHRL and neoliberalism necessitates a more complete understanding of power than Moyn’s approach offers, and this will be my focus in Section III. Continuing to draw on Mexico as an example where necessary, I argue that there are three helpful lenses which are complementary to, but absent from his critique; an absence which weakens both his analysis and his conclusions with regard to IHRL and neoliberalism. These are (i) an intersectional understanding of patterns of marginalisation, (ii) a substantive understanding of equality, and (iii) locating the role of (international human rights) law and institutionalisation within broader processes of social change, and in particular, the role of movements therein. Complementing Moyn’s concern for economic inequality with these additional considerations facilitates not only a more thorough understanding of the negative impacts of neoliberalism qua inequality generally, but also how these can be addressed, and the potential role of IHRL in supporting this.

II. Human Rights and Neoliberalism in Mexico

While underlining that the relationship between human rights and neoliberalism defies a straightforward characterisation, Moyn’s primary and most insightful critique of the relationship concerns economic inequality specifically. Admittedly running the risk of oversimplifying, we might consider this critique as twofold. Firstly, coming to prominence in the same era which saw the first, violent experiments in neoliberalism in Chile in the 1970s and accompanying it ever since, IHRL’s commitment to economic and social rights (ESR) is to be distinguished from a more rotund egalitarian agenda; as a consequence, IHRL has “nothing to say” about material inequality as a problem per se[4]. Secondly, achievement of even this comparatively minimalist ESR agenda has been insufficient on its own terms and even neoliberal economic programmes under authoritarian conditions such as those of China have proven capable of meeting its minimal standards,[5] engendering an ambiguous narrative within the human rights mainstream, which seeks to ‘civilise,’ rather than fundamentally problematise neoliberalism.[6] Echoing Susan Marks’ influential critique,[7] Moyn observes that these weaknesses fundamentally inhibit human rights’ capability to fully interrogate the root causes of human suffering, and thus its capacity for forming the basis of a fully emancipatory political project.[8]

A brief analysis of Mexico’s experience with both IHRL and neoliberal economics appears, at first blush, to demonstrate the strength of Moyn’s argument. Mexico’s engagement with both can be seen to have intensified in the 1980s: Mexico acceded to the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the American Convention on Human Rights (ACHR) in 1981, acceding to the latter’s Optional Protocol of San Salvador, which addresses ESR specifically, in 1996. The same era witnessed the opening of Mexico’s economy; following a debt crisis, Mexico began structural adjustment under the IMF in 1983, bringing on the privatisation of public companies and reversal of previous land reforms[9]. 11 years later, — coinciding with the collapse of the Peso followed by a depression and IMF bailout[10] — Mexico entered the North American Free Trade Agreement (NAFTA) with the United States and Canada, further facilitating investment from Mexico’s more developed neighbours to the north.

After three decades of exposure to neoliberal economic policy accompanied by an outward-facing commitment to human rights norms, Mexico continues to be characterised by significant poverty and extreme inequality. According to the UNDP, the poorest 40% of the population control a mere 14.9% of national income,[11] whereas it has been estimated that the wealthiest four individuals saw their combined wealth increase from the equivalent of 2% of the country’s GDP to 14% between 2002 and 2014[12]. In 2018, he National Council for the Evaluation of Social Development Policy (Coneval) found that 41.9% of the population lived in conditions of poverty, and 7.4% in conditions of extreme poverty. Of course, the human rights impact of the implementation of neoliberal economic policies in Mexico over the last three decades goes much further than poverty and economic inequality; to attempt to even summarise them would be far beyond the scope of this essay. A couple of points, however, are deserving of note. Firstly, the opening of the Mexican economy has been asserted to have facilitated the expansion of the narco-economy, as the economic crisis combined with slow growth and the loss of an estimated 2.3 million jobs in agriculture (brought on by subsidised imports from the US) provided a mass of desperate labour for drug cartels.[13] Secondly, the subsequent militarisation of public security in the “war on drugs” and the explosion of violence which accompanied it in the 2000s witnessed a massive growth in human rights violations, including arbitrary executions and enforced disappearances.[14]

As Moyn’s analysis might lead us to expect, mainstream human rights institutions and quasi-judicial organs have tended to make note of these phenomena without an interrogation of their potential relationship to the political economy — let us consider two brief examples. In its most recent Concluding Observations with regard to Mexico (2018),[15] the Committee on Economic, Social and Cultural Rights (CESCR) notes problems such as corruption, the pervasive informal economy, threats to trade union rights, poverty, inequality, and attacks against human rights defenders without placing them in the context of several decades of neoliberal economic policy. Similarly, in its 2020 annual report, Amnesty International highlights (inter alia) extrajudicial killings, enforced disappearances, and attacks against human rights defenders[16] without any attempt to (at least explicitly) investigate the role of such phenomena in sustaining a particular set of domestic and international economic relationships.

These analytical weaknesses are anything but trivial in the context of the current crisis of legitimacy being experienced by human rights. As the gap between rich and poor persists in Mexico, Latin America, and globally, it is imperative if human rights is to maintain its relevance that the actors closer to its mainstream begin to ‘get to grips’ with interrogating the ways in which direct and structural violence serve to sustain one another.

III. Human Rights and Power

Notwithstanding this imperative and the usefulness of Moyn’s critique in highlighting it, however, I believe his analysis suffers from certain weaknesses of its own which, if resolved, give us a fuller account of the relative compatibility of IHRL and neoliberalism. Three lenses help both highlight and address these weaknesses: intersectionality, substantive equality, and the relationship between law and social movements. Let us explore each of these briefly before concluding.

3.1 Intersectionality

The first weakness in Moyn’s critique is that in framing the alleged compatibility between human rights and neoliberalism, he isolates and abstracts questions of material inequality from questions of difference (such as racialisation, gender, ethnicity, disability, etc.) and their relationship to historical patterns of privilege and marginalisation. This is perhaps best captured by his elaboration of “Croesus’s world,”[17] in which he draws on the allegory of King Croesus to highlight the compatibility between human rights’ minimalist ESR agenda and the greatest economic inequality imaginable. However, while Croesus’ grotesque wealth by comparison to the rest of the world is problematised, his other characteristics and their causal relationship to the inequality of which he is a beneficiary and the means by which this may have happened are not, and we are left to merely presume that Moyn’s Croesus is not, say, an indigenous woman from southern Mexico.

By contrast, neither the wealth of real-world ‘Croesuses’ nor the poverty of the ‘have-nots’ can be understood in such a vacuum. In this regard, an analysis grounded in intersectionality, with its roots in Black feminist thought and particularly the work of Kimberlé Crenshaw, can be incredibly helpful in shedding light on the varied ways in which difference on single or multiple grounds can be intimately related to structures of disadvantage.[18] To illustrate this point, let us return briefly to Mexico: as noted above, according to Coneval in 2018, 41.9% of the overall Mexican population lived in conditions of poverty, and 7.4% in extreme poverty. However, if we consider the indigenous population, these figures rise to 69.5% and 27.9% respectively.[19] Gender adds another telling dimension: the figure for extreme poverty rose to 39.8% in the case of indigenous women.[20] Furthermore, according to Oxfam, dark-skinned indigenous women in Mexico have a 151% higher chance of ending in the lowest quintile of wealth (over twice as high as their male counterparts), and this figure rises to 250% for women who speak an indigenous language.[21] A final, particularly graphic demonstration of the gendered effects of neoliberalism is represented by the explosion in the number of maquiladoras – factories which utilise cheap and overwhelmingly female Mexican labour to produce goods for export – precipitated by the onset of neoliberalism[22]. As the “war on drugs” intensified in the first decade of the 21st century, the border city of Ciudad Juarez, home to a booming maquiladora industry, bore witness to a tragically high number in femicides of female maquiladora workers.[23]

An intersectional approach facilitates making visible such gendered, classist and often racialised dimensions of violence in the context of neoliberalism. In the interest of achieving a useful synthesis, however, it is worth adding that mainstream accounts of intersectionality, primarily confined to the realm of discrimination law, have tended to focus on the unique disadvantages which arise in contexts of overlapping ‘status identities’, such as race or gender, without adequately taking a ‘poverty dimension’ or socioeconomic status into account.[24] This tendency could be seen as reflective of the role of law more broadly in ‘neutralising’ the effects of market economics, which is explored in 3.3 below.

3.2 Substantive Equality

Armed with such an approach, however, we may then be invited to think differently about to address inequality in a more substantive manner, responding not only to the end-result of material inequality as experienced by different groups, but to the social and political patterns of dominance and marginalisation which expose them to different experiences of disadvantage. The second weakness in Moyn’s approach is that he does not attempt to develop such a model.

In this regard, equality law has useful tools to bring to bear, particularly the developing doctrine of ‘substantive equality’. Building on several threads emerging in this jurisprudence, Sandra Fredman has proposed a particularly thorough model of substantive equality which goes beyond ‘mere’ redistributive equality and complements it through addressing three further related dimensions: stigma and discrimination, participation, and structural factors.[25] This approach invites us to consider the ways in which stigma, exclusion from participation, and structural factors produced vulnerability to specific forms of disadvantage such as economic inequality, and how they might be holistically addressed. While far from being mainstreamed in IHRL, it is not difficult to see how such an understanding of equality offers a particularly helpful toolkit for redressing the skewed impact of neoliberalism on, for example, working-class women, rural or indigenous communities generally, or indigenous women, etc. Ignoring such an approach in favour of a focus on material redistribution, by contrast, risks the reproduction of a welfarism blind to historical patterns of violence, reflective of a white, male, non-indigenous, heterosexual (etc.) ‘norm’ and leaving structural issues, exclusion from participation, and historical stigma unaddressed.

3.3 Law, Power, and Movements

Finally, we ought to see law in the context of both the political economy and its instrumentalization by progressive social movements. As noted in Section II, Moyn makes a most convincing argument that human rights, in their legalised form, do little to fundamentally address the economic inequality wrought by neoliberalism. In doing so, Moyn’s primary focus is self-consciously on the legal expression of human rights. Where he does expand his focus to include what he refers to as the human rights ‘movement,’ it is frequently in regard to major international NGOs founded during the Cold War era such as Amnesty International and Human Rights Watch, whose tendency to engage in an overly legal informational politics, little concerned with economic and social considerations, is rightly critiqued for its blindness to the onset of a new ‘Gilded Age’.[26]

However, it is in adopting this particular framing of human rights and human rights movements that Moyn’s analysis again falls short of a fuller understanding of power, and his conclusions about both human rights law and movements suffer as a result. The ‘antipolitical’ stance and feigning of neutrality towards market processes which Moyn observes is not unique to IHRL, but it has been pointed out that this is symptomatic of legal discourse more generally.[27] Indeed, building on previous work from the field of politics and sociology,[28] Neil Stammers has convincingly argued that the naturalisation of existing relations and structures of power is likely to be a tendency of legalisation and institutionalisation processes in human rights.[29] In attributing agency within the human rights movement primarily to established international NGOs, Moyn in fact naturalises and reifies their legalistic and ‘antipolitical’ approach to human rights at the cost of highlighting the creative engagement with rights discourse among more radical movements.[30] The non-legal work of reconstructing societal norms and values beyond the field of law as a complementary, ‘expressive’ function of social movements, goes unaccounted for in his narrative,[31] yet this is surely fundamental to the transformative potential of human rights.

In the Mexican context, this can be observed in the multitude of movements which combine rights-based demands with a radical and systemic critique of the political economy – such as women land rights defenders, who in addition to the articulation of rights claims, draw a direct relationship between the protection of their bodies from patriarchal violence and the protection of their lands from extractive industries, and the use of their native languages and traditional forms of labour to confront neoliberalism.[32]

Further, the proximity of human rights in their legal form to institutions and elites has an additional dimension: that of providing a vocabulary which both facilitates dialogue and adds legitimacy to the claims of radical movements couched in the language of elites. In a heavily militarised context, formulating their demands with reference to international human rights law has the effect of universalising and legitimising the claims of movements and communities in resistance which otherwise are at risk of being discursively dismissed as ‘communists’, ‘guerrillas’ or other threats to national security.

All of the above, then, helps us to see IHRL’s relationship to neoliberalism more comprehensively, which I will attempt so some up in conclusion.

IV. Conclusion

There can be no doubt that IHRL in its legal and institutional form, and its mainstream representatives on the global scene have under-addressed questions of political economy generally, and neoliberalism specifically, in the creation of vulnerability to human rights abuses which Susan Marks refers to as ‘planned misery.’[33]

However, critiquing human rights’ ambiguous relationship to neoliberalism is best served by a thorough exploration of law and political economy in terms of power. Such an approach helps us to see that while IHRL will certainly not be the only discourse that can be mobilised to challenge inequality, nor should it be disregarded in its entirety. Following Stammers, we can see the role of legalising and institutionalising rights claims as the slow concretisation and acceptance of progress within power structures, and understand their tendency not to be “fertile soil through which existing relations and structures of power can be effectively challenged”[34] without external pressure from social movements. As such, human rights defenders should be keenly aware of the potential of such processes for replacing one form of power with another[35] and therefore adopt a framing which sheds light on the multiple dimensions of power. Substantive equality and intersectionality can be helpful tools, alongside a willingness to thoroughly engage with and problematise economic inequality, in constructing such a framing. While the mainstream of human rights has not yet embraced tis, movements such as feminist indigenous and land rights defenders in Mexico (and indeed globally) are among many examples which often do. Far from an ‘antipolitics’ disengaged from questions of political economy, their formulation of rights claims form part of a comprehensive struggle to deconstruct unjust power relations in that sphere and beyond it.


(i) Books

Shreya Atrey, “Beyond Universality” in Shreya Atrey and Peter Dunne (eds) Intersectionality and Human Rights Law (Hart 2020).

Colm O’Cinneide, “The Potential Pitfalls of Intersectionality” in Shreya Atrey and Peter Dunne (eds) Intersectionality and Human Rights Law (Hart 2020).

Sandra Fredman, “The Right to Education and Substantive Equality: An Intersectional Reading” in Shreya Atrey and Peter Dunne (eds) Intersectionality and Human Rights Law (Hart 2020).

Sandra Fredman, Human Rights Transformed (Oxford University Press, 2008).

Naomi Klein, The Shock Doctrine (Penguin, 2007).

Samuel Moyn, Not Enough: Human Rights in an Unequal World (Harvard University Press, 2018).

(ii) Articles

Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman ‘Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis’ The Yale Law Journal 1785-1834 (2020) available at https://www.yalelawjournal.org/feature/building-a-law-and-political-economy-framework accessed on 18 November 2022.

Paul Cooney, ‘The Mexican Crisis and the Maquiladora Boom: A Paradox of Development or the Logic of Neoliberalism? Latin American Perspectives 28 3 55-83 (May 2001).

Sarah Engle Merry ‘Transnational Human Rights and Local Activism: Mapping the Middle’ American Anthropologist 108 1 38-51(Mar. 2006).

Sandra Fredman ‘Substantive equality revisited’ ICON Vol. 14 No. 3 712-738 (2016).

Pierre Gaussens, Carolina Jasso González, ‘Militarization of Public Security and Violation of Human Rights in Mexico (2000-2020)’, The Age of Human Rights Journal 15 15 pp26-50 https://doi.org/10.17561/tahrj.v15.5783 accessed on 18 November 2022.

Amy Kapczynski ‘The Right to Medicines in an Age of Neoliberalism’ Humanity, Spring 2009 79-107 available at http://humanityjournal.org/issue10-1/the-right-to-medicines-in-an-age-of-neoliberalism/ accessed on 18 November 2022.

AC Laurell. ‘Three Decades of Neoliberalism in Mexico: The Destruction of Society’. International Journal of Health Services. 45 2 246-264 (2015) doi:10.1177/0020731414568507.

Susan Marks, ‘Human Rights and Root Causes’ The Modern Law Review Vol 74 No 1 (2011).

Julien Mercille, ‘Violent Narco-Cartels or US Hegemony? The political economy of the ‘war on drugs’ in Mexico,’ Third World Quarterly 32 9 1637-1653 (2011).

Samuel Moyn, ‘A Powerless Companion: Human Rights in the Age of Neoliberalism’ Law and Contemporary Problems, 77 4 147-169 (2014).

Dustin N Sharp ‘Pragmatism and Multidimensionality in Human Rights Advocacy’ Human Rights Quarterly 40 499-520 (2018).

Neil Stammers ‘Social Movements andthe Social Construction of Human Rights’ Human Rights Quarterly 21 4 980-1008 (Nov. 1999).

(iii) Treaties, Concluding Observations, and Declarations

Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3.

International Covenant on Civil and Political Rights (adopted 16 December 1966) 999 UNTS 171 (ICCPR).

International Covenant on Economic, Social, and Cultural Rights (adopted 16 December 1966) 993 UNTS 3.

Organization of American States (OAS), American Convention on Human Rights, “Pact of San Jose”, Costa Rica, 22 November 1969, available at: https://www.refworld.org/docid/3ae6b36510.html [accessed 20 April 2021].

Organization of American States (OAS), Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”), 16 November 1999, A-52, available at: https://www.refworld.org/docid/3ae6b3b90.html %5Baccessed 20 April 2021].

United Nations Economic and Social Council, Committee on Economic, Social and Cultural Rights “Concluding observations on the combined fifth and sixth periodic reports of Mexico” (17 April 2018) UN Doc E/C.12/MEX/CO/5-6.

 (iv) Reports

Amnesty International “Mexico 2020” available at https://www.amnesty.org/en/countries/americas/mexico/report-mexico/ accesed on 20 April 2021.

Coneval (2018a) “Pobreza en la Población Indígena” available at https://www.coneval.org.mx/Medicion/MP/Paginas/Pobreza_Indigena.aspx accessed on 19 April 2021.

Coneval (2018b) “Pobreza y Genero en México: Hacia un Sistema de Indicadores” available at https://www.coneval.org.mx/InformesPublicaciones/InformesPublicaciones/Documents/Pobreza_genero_08-18.pdf accessed on 18 November 2022.

Gerardo Esquivel Hernandez, “Extreme Inequality in Mexico”, Oxfam (2015) available at https://is.cuni.cz/studium/predmety/index.php?do=download&did=113954&kod=JMM591 accessed on 20 April 2021.

Oxfam (2016) Briefing Paper: “An economy for the 1%” available at https://www-cdn.oxfam.org/s3fs-public/file_attachments/bp210-economy-one-percent-tax-havens-180116-en_0.pdf accessed on 20 April 2021.

Patricio Solís, Braulio Güemez Graniel, Virginia Lorenzo Holm: “Por mi Raza Hablará la Desigualdad”, Oxfam México 2019, available at https://www.oxfammexico.org/sites/default/files/Por%20mi%20raza%20hablara%20la%20desigualdad_0.pdf accessed on 20 April 2021.

UNDP Human Development Report (2020) Country Profile: “Mexico” available athttp://hdr.undp.org/en/countries/profiles/MEX accessed on 20 April 2021.

(v) Websites

Aishu Balaji, Dayana Yahaya and Michelle R. Maziwisa, ‘Creating a Feminist Alliance for Trade Justice’, OpenGlobalRights https://www.openglobalrights.org/a-feminist-alliance-for-trade-justice/ accesed on 18 April 2021.

Laurel E. Fletcher “The international human rights imaginary and the international human rights movement”, OpenGlobalRights 26.03.2021 available at https://www.openglobalrights.org/the-international-human-rights-imaginary-and-the-international-human-rights-movement/ accessed on 21 April 2021.

Paul O’Connell, “Capitalism, Inequality, and Human Rights” (LPE Project, 04.06.2018) available at https://lpeproject.org/blog/capitalism-inequality-and-human-rights/ accessed on 20 April 2021.

César Rodriguez-Garavito ‘Anti-Capitalist Human Rights for the 21st Century’ OpenGlobalRights https://www.openglobalrights.org/anti-capitalist-human-rights-for-the-21st-century/ accessed on 18 April 2021.

Comité de Defensa Integral de los Derechos Humanos “Gobixha” (CODIGO-DH), “Del Cuerpo al Territorio: Mujeres Defensoras Ikoots De San Dionisio Del Mar” available at https://codigodh.org/2021/04/14/del-cuerpo-al-territorio-mujeres-defensoras-ikoots-de-san-dionisio-del-mar/ accessed on 20 April 2021

Just Associates (JASS): “Women Defending the Earth: Plunder, Power, Resistance” available at https://justassociates.org/en/women-defending-earth-plunder-power-and-resistance accessed on 20 April 2021.  

Minority Rights Group International, “Case Study: Indigenous Women in Mexico” https://stories.minorityrights.org/lifeatthemargins/chapter/36/ accessed on 20 April 2021

[1] Fletcher/OpenGlobalRights

[2] Klein, quoted in Marks p59

[3] Moyn (2014, 2018)

[4] Moyn (2014) p151

[5] ibid pp160-162

[6] ibid p149

[7] See Marks (2011)

[8] Moyn (2014) p159

[9] Laurell, p250

[10] Cooney p55

[11] UNDP Human Development Report 2020

[12] Esquiviel Hernandez, cited in Oxfam (2016) p18

[13] Mercille, p1642

[14] Gaussens, pp36-44

[15] Economic and Social Council E/C.12/MEX/CO/5-6

[16] Amnesty International (2020)

[17] Moyn (2018) pp212-213

[18] Atrey pp30-31

[19] Coneval (2018a)

[20] Coneval (2018b) p124

[21] Solis et al/Oxfam p58

[22] Cooney, p60

[23] Minority Rights International

[24] O’Cinneide p75, Atrey p33

[25] Fredman (2016) pp727-738

[26] Britton-Purdy et al, p1786

[27] ibid pp1786-1793

[28] Stammers, p998, footnote 55

[29] Ibid pp998-1000

[30] For a further example of this see O’Connell (2018)

[31] Stammers pp998-1000

[32] CodigoDH, see also JASS

[33] Marks, p59

[34] Stammers, p998

[35] ibid, p1005