Defining Gender in Gender Apartheid

This paper examines how gender operates both rhetorically and legally within emerging efforts to define gender apartheid under international law. Through a comparative analysis of international human rights, criminal, and refugee law, I trace how each regime constructs and constrains gender in the context of gender apartheid, revealing inconsistencies in the scope of protection and recognition. The selected case studies, CEDAW General Recommendation No. 40, the ICC applications for arrest warrants against Taliban officials, and an ECJ case concerning Afghan asylum-seekers, illustrate how definitional and discursive choices, especially the persistence of binary understandings of gender, shape which harms are rendered visible or invisible through legal language and interpretive practices. I argue that the struggle to define gender in gender apartheid is not merely semantic but structural: it reflects deeper ideological investments in heteronormativity and epistemic hierarchies within international law. The paper calls for a more inclusive and gender-expansive legal lexicon, one that can more effectively name and respond to gender apartheid.