The Committee on the Rights of Persons with Disabilities and its take on sexuality

Abstract After analysing the concluding observations of the Committee on the Rights of Persons with Disabilities, hereafter referred to as the Committee, this paper examines how the Committee has sustained a protective, medical, and gender binary model to address the sexual and reproductive rights of persons with disabilities. To break away from this narrow approach to sexuality, I call for an understanding of sex/gender that is more fluid and shifting, recognising the ability of persons with disabilities to express and act upon desire consensually, and bringing into the discussion issues of sexual orientation and gender identity.


Introduction
On 13 December 2006, the General Assembly of the United Nations adopted the Convention on the Rights of Persons with Disabilities (hereafter the Convention), 1 which entered into force on 3 May 2008. The Convention sought to address the widespread discrimination against people living with disabilities in education, healthcare, politics, employment, and other areas. As the first treaty tackling disability from a rights perspective, it distinguished itself for abandoning the medical disability modela historical paradigm that portrayed individuals with disabilities as incapable and in need of protection and correctionand for adopting a social disability model.
The paradigmatic shift of the Convention has caught the attention of many scholars. For instance, various authors have examined how the Convention upheld an equality and rights language, making disability part of the human experience and contributing to the advancement of human rights jurisprudence. [2][3][4][5] Other authors have observed the implications of the Convention in the medical, legal, and policy spheres. [6][7][8] A further group of scholars have researched the domestic incorporation of the Convention. 9, 10 Nevertheless, not much has been written regarding how the Convention repositioned issues of sexuality. Although some authors have argued that in the drafting of the Convention the discussion on sexual and reproductive rights was confined to the protection of persons with disabilities from forced sterilisation and sexual abuse, 11,12 these studies have not adopted a gender perspective for analysing how the Committee has thereafter attended to issues of sexuality.
In 2011, the Committee drafted its first concluding observations on the initial reports submitted by Tunisia and Spain. As of August 2016, over a five-year period, the Committee had published 40 concluding observations. In this paper, I examine how the Committee has framed the discussion on gender and sexuality. I argue that, despite a revolutionary founding Convention, the Committee has retained a protective, medical, and gender binary model to address the sexual and reproductive rights of persons with disabilities. As a possible pathway for returning the debate on disability and sexuality to the social arena, I call for an understanding of sex/gender that is more fluid and shifting, recognising persons with disabilities' ability to express and act upon desire consensually and bringing into the discussion issues of sexual orientation and gender identity.
The paradigm swing of the Convention: From a medical to a social model Prior to the adoption of the Convention in December 2006, the UN Declaration on the Rights of Mentally Retarded Persons, * Rights of Disabled Persons, † and the Principles of the Protection of Persons with Mental Illness and the Improvement of Mental Healthcare ‡ had been highly criticised for their patronising and pejorative visions towards persons with disabilities. 2,3,9 These soft law instruments, which lacked legal binding force, adopted a medical disability model that portrayed individuals with impairments as deficient. 6,9 From this standpoint, disability was something that could be fixed, cured, rehabilitated, or treated. 11 The belief was that with proper support persons with disabilities could have "normal" or "close to normal" lives. 13 The medical model fostered images of "dependent individuals who evoke sympathy, if not pity, and require societal protection and support to compensate for their inabilities". 3 The adoption of a social model of disability began to germinate in the mid-1960s within disability rights movements. 13 At the crux of the matter, the idea of a social model emanated from the distinction between impairment and disability. Whereas impairment was understood as a problem in body function or structure, including mental ones, 4,14 disability was considered a limitation that resulted from social oppression and practices of discrimination. 6 It mirrored social structures that denied or diminished the personhood of those with impairments. 7 Under this prism, impairments by themselves did not automatically cause disability. At least in theory, from this perspective, individuals with impairments could live in societies and environments without being subject to disability. This conceptualisation drove a push towards eradicating disability by considering its social causes. The key emphasis was on the social relationships, environments, and the external situations through which disability was created. 15 With the adoption of the UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities in 1993, § the social model of disability began displacing the personal tragedy theory that characterised the medical model. 8,17 This soft law instrument stressed the social causes of disability and marked the direction for the enactment of the Convention on the Rights of Persons with Disabilities (CRPD). Shifting away from the medical model, the Convention introduced an approach that centred on the autonomy, dignity, and equality of persons with disabilities. It recognised that "humans come in an infinite variety of characteristics" 8 making disability a reality of the human condition. It adopted a human rights model that recognised persons with disabilities as members of society and rights holders, placing emphasis on raising awareness and fostering respect. 4 Crucially, disability was deemed as emanating from social stigma, stereotypes, and discrimination that act upon the individual. It originated from social restrictions and not from biological features. 2,3,7 ¶

Performativity, sexuality and international law
The efforts to reimagine the norms by which sexuality is experienced are cardinal to disability and gender politics. Historically, disability and gender have been considered fixed bodily conditions. 18 These essentialist and naturalised understandings have served to reaffirm gender and disability stigmas and stereotypes. They fashion a heterosexual matrix that severely restricts the sexuality of the individuals that do not fit within the hegemonic repertoire. 19,20 By silencing and rejecting the sexuality of those who are differently embodied, they "damage the very possibility of human becoming". 21 A social understanding of disability contests narrow and abled "natural" orders and a social definition of gender refutes binary and gendered These standards are generally considered to be more progressive with respect to sexuality than the law that was ultimately approved as CRPD. To see the evolution of international instruments regarding disability, see Ferri 16 ¶ There have been multiple critics to the social model. Not all authors share the view that disability is completely exogenous. For this group of authors, there is a personal side to disability. 18 The central aim of the distinction, however, is to make disability political rather than just a medical condition. 13 "natural" orders. In both cases, disability and gender scholars challenge the biological moorings of disabled/gendered bodies, resisting normative frameworks that grant personhood to some and deny it to others. [19][20][21] As an alternative, when it comes to sexuality, a performative approach reasserts that the body tells us little about an individual's desires and pleasures. It recognises that "humans come in an infinite variety of characteristics" 8 and conceives sexuality as fluid and shifting. Thus, it is intended to shed light on the social meanings that are discursively produced. [19][20][21] In the same vein as the social model of disability, a performative account conceives sexuality as a political feature rather than a characteristic of the body.
With the intention of positioning excluded individuals within the changing norms, gender and disability movements have aimed at amplifying the possibilities of terms by which "humanness" is conferred. 19,20 In this regard, the inclusion of gender and disability into the lexicon of human rights has represented a step towards recognising the "humanness" of women and persons with disabilities.
Nevertheless, not all individuals of different gender identities, sexual orientations, and disabilities have been conceived of as persons and rights holders. In international human rights law, gender and sex continue to operate according to naturalised and biological categories. 19 This traditional understanding of gender reinforces masculine/ feminine binary structures. 22 Under this prism, women are viewed as vulnerable, while heterosexual men are depicted as fighters, aggressors or violators. 22,23 Regarding sexuality, a series of authors have warned that the overbearing attention placed on criminalising rape, prostitution, and sex trafficking confines women's experiences of sexuality, linking sexual violence to women and rendering the acts of sexual violence suffered by men invisible. [22][23][24] Within this framework, the confinement of the conception of gender to two biological sexes and the instilment of heterosexuality as the norm expels other gender identities and sexual orientations from the cartography of international human rights law. 19 The discussion on gender binaries and international law has extended to debates on disability. For instance, some scholars have proposed advocating for the reproductive rights of same-sex couples through the Convention, 25 while others have raised the possibility of using the Convention to facilitate the legal recognition of those who desire to live as another gender, secure legal status of their gender, and have access to sex change or hormonal surgery. 20 For this group of scholars, the objective has been to extend the Convention's understanding of disability to encompass other social conditions and situations that are not perceived as disabling.
Throughout the negotiations on the Convention, there was considerable tension between the state parties concerning sexuality. The discussions on sexual and reproductive rights centred on protecting persons with disabilities from forced sterilisation and on containing the efforts pushed by the Holy See and its allies to extend the right to life to the foetus. 7 Concerning the former, States Parties opted to condemn sterilisation of persons with disabilities without free and informed consent. As for the latter, the wording of the article on the right to life was written in a way that it could not be "held to be inherently 'pro-life' or 'pro-choice'". 12 As a restriction on reproductive autonomy, protectionist measures were upheld and assertions of sexual rights were excluded. 11 The silence on affirmative sexual and reproductive rights reinforced prejudices that equate disability with incompetence, incapacity, impotence, and asexuality. Going back to the previous section, if one recognises that one of the main achievements of the Convention was the abandonment of the medical model that portrayed persons with disabilities as dependent individuals "who require societal protection and support to compensate for their inabilities", 3 it is paradoxical to note that the Convention preserved the stereotypical representations of sexuality in disability.
This leads me to adopt the following hypothesis: the Committee has retained a medical model with regard to sexuality by replicating naturalised, biological, and binary conceptions of gender. Following and strengthening the protective trend, it has confined its deliberations on sexuality to safeguarding women from practices of sexual violence, paying scant attention to sexual self-determination, gender identity, and sexual orientation. This narrow approach to sexuality has failed to address the social stigmas and stereotypes that limit the possibilities of persons with disabilities of expressing and acting upon desire consensually.

Methodology
The Committee consists of 18 experts (12 before more than 60 additional ratifications or accessions to the Convention were made) [Art.34]. These experts are elected by States Parties for a period of four years, being eligible for re-election once. When selecting the experts, States Parties are called to take into consideration that there is "equitable geographical distribution, representation of the different forms of civilization and of the principal legal systems, balanced gender representation and participation of experts with disabilities" [Art.34, para.4]. As a monitoring body, the Committee reviews the reports that States Parties must submit every four years [Art.35-36], making recommendations for the implementation of the Convention. Furthermore, civil society organisations are also called to participate in the monitoring process [Art.33, para.3]. From January 2009 until December 2016, a total of 42 experts have served as members, and 14 of these have been women. Unfortunately, as of January 2017, only one woman serves as a member of the Committee. Hence, during the period studied, different experts have participated in the drafting of the concluding observations of the Committee (see appendix, Table A2). ** The research adopted a quantitative and qualitative method for analysing the concluding observations of the Committee. A total of 40 concluding observations were reviewed, which date back to 13 May 2011, when the first concluding observation was presented, to 23 May 2016 (see appendix, Table A1). The data were coded and categorised according to the main issues discussed within each of the concluding observations. Using a keyword query, 26 only matters related to gender, disability, and sexuality that were expressly mentioned by the Committee were considered. The keyword query included, but was not limited to, women, gender, intersex, transgender, sexual orientation, gender identity, abortion, pregnancy, reproduction, intersectionality, intercourse, sex, and sexuality. Furthermore, these issues were coded according to the articles used by the Committee to voice its concerns and recommendations. The coding revealed the frequency with which specific topics appeared throughout the corpus, and it allowed for a close examination of the lexical variances, evolution, and regularity of certain matters in the concluding observations over time. This quantitative approach was complemented by a close reading of the texts, paying special attention to those issues that provided insight to the discussion on gender, disability, and sexuality. As in all interpretative studies, the main arguments developed in the process of coding and were strengthened once they were juxtaposed with the existing literature on gender and sexuality.

Findings
When reviewing the Committee's concluding observations, the first thing that jumps out is the number of times that women are mentioned. Throughout the whole corpus, women are mentioned 532 times, being among the top 15 words most frequently employed -0.51% frequency relative to the total words counted. Additionally, whereas in 2011 the Committee restricted most of its concerns and recommendations on women to Article 6 of the Convention -Women with disabilities, in 2016, it brought up women when discussing compliance to Article 5 -Equality and non-discrimination, Article 8 -Awareness raising, Article 9 -Accessibility, Article 16 -Freedom from exploitation, violence and abuse, Article 17 -Protecting the integrity of the person, Article 23 -Respect for home and the family, Article 25 -Health, among others. In this sense, there has been a gradual expansion and growing visibility of the situations faced by women with disabilities.
In only two of the forty concluding observations, the Committee remarks on the gender composition of the State delegation. In the concluding observation to the report submitted by Dominican Republic, the Committee states that it is "grateful for the dialogue held with the State Party's delegation but would have appreciated it if a larger delegation with a better gender balance had been sent" [para.2]; 27 and in the concluding observation to the report submitted by Mongolia, it "commends the State party for the balance of men and women in its delegation" [para.3]. 28 † † In the concluding observations, the insertion of a gender perspective has been mostly framed as taking women's experiences into account. For instance, the Committee has demanded the States compile data and statistics on the situation of women and girls with disabilities, ‡ ‡ but it has **The shifting constituency of the Committee, the nationality and gender of the members, whether the Committee is only a proxy for the States views, and how civil society organisations have influenced the recommendations made by the Committee, are questions that go beyond the scope of this article. † † These observations were made in a period when five women were members of the Committee (see: Table 2). not voiced the same concerns about the absence of information on the situation of persons with different gender identities and sexual orientations. Most of the recommendations deploy the following discursive framework: "The Committee recommends that the State Party systematise the collection, analysis and dissemination of data on women and girls with disabilities, and enhance capacity-building in this regard. It should develop gender-sensitive indicators to support legislative developments, policymaking and institutional strengthening for monitoring, and report on progress made with regard to the implementation of the various provisions of the Convention" [para.51]. 29 Additionally, when raising the issue of gender-based violence, the Committee has underscored cases of trafficking, sexual abuse and exploitation of women with disabilities, linking sexual violence to women and rendering the acts of sexual violence suffered by men invisible. § § As it will be analysed below, only two of the 40 concluding observations mention gender identity and sexual orientation.
When addressing issues of sexuality, the concerns of the Committee have been mostly narrowed to worries about health rather than conceived as a way of advancing sexual desire, freedom, and selfdetermination. For instance, it has referred to sexual and reproductive rights in 35 concluding observations, but in 20 of these, it has framed its concerns on sexual and reproductive rights within Article 25 -Health. This shows the extent to which sexuality continues to fall under the medical model. Only once has the Committee alluded to consultation and participation when it comes to the promotion of sexual and reproductive rights, and only 10 of the 35 concluding observations do not use the word violence (including forced sterilisation and abortion) or protection when tackling sexual and reproductive rights, and only five do not use the word health. This is not to say that violence or health should not be mentioned or are not relevant; but it serves to confirm the extent to which the protective and medical discourses have been the prevalent frames used to address the sexual and reproductive rights of persons with disabilities. In this sense, the majority of the concerns and recommendations have adopted this type of language: "The Committee is concerned that current legislation does not protect women and girls with disabilities from forced sexual and reproductive health procedures, nor does it provide for sexual and reproductive health education" [para.35]. 30 Again, the Committee recommends the state to "Establish mechanisms to monitor healthcare facilities and adopt measures to prohibit forced sterilisation and ensure that adequate information is provided in accessible formats for all women and girls with disabilities concerning their sexual and reproductive rights" [para.34]. 31 These citations and the data referred to above expose three main problems. First, they demonstrate the way the protective discourse has been deployed. Second, they capture the weight given to violence, force, and health. Third, they evidence the focus on women. Lastly, even though the Committee does call for the provision of sexual and reproductive health education and information, this does not necessarily mean that the protectionist logic is expelled. These provisions can be interpreted in a way that is either empowering or protectionist. The overarching emphasis on violence and force indicates that the intention has been to underscore the latter rather than the former.
In certain instances, the Committee has sometimes bolstered the stigmas and prejudices it is supposed to fight against. For example, in discussing the prevalence of teenage pregnancy among young women with disabilities, the Committee writes: The high level of pregnancy among adolescents and young people aged between 12 and 19 years, according to the most recent population and housing census of 2010, and the fact that the age at which most women with disabilities reportedly had their first child was between 15 and 19 years old … is indicative of a high incidence of sexual abuse of women with disabilities, particularly with intellectual disabilities. 32 From this perspective, teenage pregnancy is equated to sexual abuse. This rationale undermines the sexuality of adolescent women with disabilities and reduces it to violence. By doing so, it justifies the need of protective policies that replicate gender asymmetries and stereotypes. It ignores the lack of access to contraception or information related to safe sex by persons with disabilities and disregards ‡ ‡ See: CRPD/C/MEX/CO/1 par. 14b, CRPD/C/DEU/CO/1 par. 16b, their own subjectivity and ability to express and act upon desire consensually.
Then comes the issue of abortion. In 8 of the 10 concluding observations in which abortion has been mentioned, the Committee has mostly condemned substitutive decision-making and forced abortion procedures. ¶ ¶ Once again the element of force comes up. Rather than framing the debate in a way that acknowledges women's right to choose over their bodies, placing emphasis on their sexual autonomy and decision-making capacity, the Committee has used a language that stresses protection from forced abortion. Even though the debate on substitutive decision-making is precisely about acknowledging the capacity of persons with disabilities, the Committee has at times portrayed women with disabilities as passive victims rather than as empowered and capable subjects with rights. The obligation of the state is reduced to negative safeguards rather than positive measures. When not condemning forced abortion, it has insisted that "the State Party abolish the distinction made (…) on the protection of the life of the foetus in the period allowed under law within which a pregnancy can be terminated, based solely on disability". 33 Even though the intent is to challenge eugenic practices, with its recommendation to eliminate the distinction made as to which pregnancies can be terminated, the Committee has offered leverage to anti-abortion movements that insist on prohibiting women's right to choose. Since law makers can remit to the Committee's observations to bring the dispute on abortion back to the table, hard-won legal victories to decriminalise abortion might once again be threatened.
As the meaning of sex/gender becomes fixed on biology, expressions of sexuality have been reduced. Despite having intersectionality as its backbone, in only two utterances has the Committee condemned practices of discrimination based on sexual orientation and gender identity while in another two it has expressed its concerns with the medical procedures imposed upon intersex children. *** In the concluding observation to the report submitted by Lithuania, the Committee recommended "the State Party include measures to prevent and eradicate discrimination based on sexual orientation and gender identity in the action plan" [para .15]. 34 The recommendation was made when the Committee expressed its concerns under Article 6 of the Convention, Women with disabilities. In the concluding observation to the report submitted by Uganda, the Committee conveyed its unease about "the persisting discrimination against persons with disabilities, including in particular persons with albinism, persons with intellectual and/or psychosocial disabilities, and on other grounds, such as gender identity and sexual orientation" [para.8]. 35 This concern was conveyed when the Committee examined the State's compliance with Article 5 of the Convention, Equality and non-discrimination. Hence, on the two occasions that gender identity and sexual orientation have been evoked, it has been under different articles of the Convention. More interestingly, both concluding observations date to May 2016, making gender identity and sexual orientation a relatively recent issue to which the Committee has directed its attention. Before these concluding observations, there was a silence on gender identity and sexual orientation. This silence reveals the extent to which international governance can sometimes reassert the hold of heterosexual and binary structures, in which any transgressions to the set repertoire remain unrecognised within the norms or are sometimes punished by the law. Demonstrably, with the exceptions of the recent concluding observations, the Committee has confined its comments on sexuality to heterosexual, non-consensual, and violent practices that require a public health approach, especially regarding women.
The recent concluding observations and the Committee's General Comment no. 3 of September 2016 signal a first step away from gender binaries. 36 In order to open the discussion on sexuality in disability, the Committee has begun to address the harmful stereotypes that affect persons with disabilities. Recognising that persons with disabilities are not a homogeneous group, it has expressly started to include lesbian, gay, bi-sexual, transgender, and intersex persons in its comments and recommendations.

Conclusions
Even though "no group faces the same sort of sexual and reproductive restrictions as are faced by persons with disabilities", 37 the Committee has focused the debate on sexuality to "harmful ¶ ¶ See: CRPD/C/EU/CO/1 par. 47, CRPD/C/LTU/CO/1 par. 38, CRPD/C/SRB/CO/1 par. 33, CRPD/C/ARG/CO/1 par. 31; CRPD/ C/CHN/CO/1 par. 34, CRPD/C/SL V/CO/1 par. 38 ***See: CRPD/C/LTU/CO/1 par. 16, CRPD/C/UGA/CO/1 par. 8, CRPD/C/CHL/CO/1 par. 42, CRPD/C/DEU/CO/1 par. 38 medical practices" and has not addressed the social and structural limits imposed on sexuality in disability. If sexual incapacity doctrines are one of the "most important form of sexual regulation, as they control access to sex by designating who is legally capable of sexual consent", 38 the limited perspective of the Committee on sexuality has served to endorse rather than to refute fixed incapacity doctrines. By narrowing sexual and reproductive rights to instances of violence and force, whose solution is restricted to sex education and information within the medical arena, the Committee has replicated prejudices that equate disability with incapacity, incompetence, impotence, and asexuality. It has also failed to acknowledge the experiences of persons with disabilities with different sexual orientations and gender identities.
The notion of sex/gender as a fluid and shifting category is one step towards abandoning the naturalised and essentialist understandings of sexuality in disability. Fixed notions of gender act in detriment of people's fluid selves and are not in tune with the intersectional aspect of people's lives. An approach that insists on performativity argues that sexuality is marked by social interactions, environments, and structural relations of power. From this perspective, a constricted vision that overlooks the social aspect of gender and disability regarding pleasure, desire, and sexuality redirects the discussion back to the medical model, portraying persons with disabilities as incapable individuals that require protection and correction. The danger is that this approach fails to support political action by locating the "problem" at the individual level. Conversely, a shifting and fluid understanding of sexuality seeks to comprehend the political struggles in which bodies matter, enabling us to consider how "a person's sense-of-self and ascribed identity are partly defined by her or his positioning in relation to not one but several dimensions of power". 39 Overall, it makes sexuality political.
The acknowledgment of the other as a sexual being represents a step towards the recognition of the other as a person who has rights, hopes, dreams, and desires. Human rights advocates must reaffirm that the disability movement rejects "approaches based upon the restoration of normality (…), insisting on approaches based on the celebration of difference". 13 This implies transcending fixed visions of sexuality in disability that reduce it to violence and that replicate naturalised and biological conceptions of the body.