Gender challenging Sex Equality : An overview of the impact of Gender on the implementation of Sex Equality

During the past decades, the principle of non-discrimination and equality has evolved from a conception of gender-blind, neutral and formal sex equality to a conception of substantial equality, in response to the persistent imbalances and inequalities between men and women in the economic, political, and professional spheres. Several international conventions and national constitutions have then explicitly acknowledged the need for positive measures (e.g. affirmative actions) to promote equality between the sexes. For instance, measures tackling the underrepresentation of women in decision-making bodies and parliamentary assemblies (i.e. “sex” or “gender” parity) refer to the concept of sex in a binary perspective. However, the principle of sex equality is confronted to a crucial social evolution : the recognition of gender as a manifestation of individual autonomy in matter of self-identification (namely the right to gender self-determination). While the concept of sex enables a division of people into two categories, i.e. "women" and "men", the concept of gender transcends binarity, by including the possibility of not belonging to either category (people identifying as “non binary”) and by promoting personal autonomy in matter of sexual identity, especially in regards of norms providing for sex registration. The recognition of gender in non-discrimination and equality law thus fundamentally challenges the traditional legal classification system consisting of two sexual categories.