Prohibition of discrimination on the basis of ‘gender identity’ and ‘gender expression’ is a relatively new issue in the East Asian region. The UN Committee on Economic Social and Cultural Rights includes within ‘sex’, ‘the social construction of gender stereotypes, prejudices and expected roles, which have created obstacles to the equal fulfillment of economic, social and
cultural rights’ (CESCR 2009). Using this definition of ‘sex’, discrimination on the basis of gender expression would be discrimination on the basis of ‘sex’.
In 1996 the European Court of Justice held that discrimination on the basis of sex reassignment was discrimination on the basis of sex and, for that reason, was contrary to EU law (P v S 1996). Anti-discrimination laws that cover gender identity are mandatory in the EU, and increasingly common in other parts of the West. The constitution approved in Bolivia in January 2009 was the first in the world to expressly ban discrimination on grounds of gender identity, as well as sexual orientation.
Laws on rape often apply only when the victim is a woman. In September 2009 the Korean Supreme Court recognised a male-to-female transsexual as a woman in the context of the criminal law provision on rape, though the designation of ‘sex’ in the family register had not been changed in the particular case. A case in 2010 in Vietnam was dismissed on the basis that a post-operative male-to-female transsexual was still considered a man (UNDP 2011: 5).
Discrimination on the basis of ‘gender expression’ is a separate issue. In Price Waterhouse v Hopkins the United States Supreme Court in 1989 held that a firm’s decision not to grant a partnership to a highly successful employee had been based on the fact that she was not sufficiently feminine (Price Waterhouse v Hopkins 1989). She had been told to wear make-up and jewellery, and to take a course at a ‘charm school’. This was held to be ‘sex stereotyping’ and a form of discrimination on the basis of ‘sex’, in violation of US law. This is the most significant decision, internationally, on discrimination on the basis of ‘gender expression’.