On April 24^th 2020, Mazhilis, the lower chamber of the Parliament of the Republic of Kazakhstan, commenced consideration of the draft Law ‘On Introduction of Amendments and Additions to Some Legislative Acts of the Republic of Kazakhstan on Family and Gender Policy’ (‘Draft Law’).^[1] The Draft Law proposed amendments to the Law ‘On State Guarantees on Equal Rights and Equal Opportunities for Men and Women’ dated December 8^th 2009 (‘Law’):

1. To change the term “gender equality” to the words “equality on the basis of sex” throughout the entire text of the Law.
2. To amend the Preamble of the Law (“The current Law regulates public relations in the sphere of ensuring state guarantees on equal rights and equal opportunities for men and women and establishes fundamental principles and norms on creating the conditions for gender equality in all spheres of state and public life”) to read as follows: “The current Law regulates public relations in the sphere of ensuring state guarantees on equal rights and equal opportunities for men and women and establishes fundamental principles and norms on achieving equality on the basis of sex in all spheres of life”.
3. To repeal paragraph one of Article 1 [on Key concepts used in the Law] (“1) gender is a social aspect of relations between men and women which manifests itself in all spheres of life”).
4. To amend paragraph two of Article 1 (“2) gender equality is a legal status which guarantees men and women equal rights and equal opportunities and real access to participation in political, economic, social, public and cultural spheres of life irrespective of sex”) to read as follows: “2) equality of the basis of sex is the presence of general and specific rights which establishes opportunities for achievement of equal results by representatives of male and female sex in all spheres of life.”

On June 6^th 2020, at the second meeting of the working group on the Draft Law, the drafters supported the amendments and further suggested to change the ‘gender equality’ term to ‘equality of men and women’ defining it as ‘the presence of general and specific rights which guarantee achievement of de facto equality of men and women in all spheres of life’.

In ‘Reasoning and Approach’ of the Draft Law the drafters claim that the amendments are designed to implement Article 2(a) of the Convention on the Elimination of Discrimination against Women (‘CEDAW’ or ‘Convention’) in line with “the recommendation of gender analysis of legal acts of the Republic of Kazakhstan” which concluded that ‘gender equality is a sociological category, but not a legal and regulatory category’.

Yet, the CEDAW Committee itself, stressing that in addition to the prohibition of sex-based discrimination the Convention ‘covers gender-based discrimination’^[2], in November 2019 commended Kazakhstan for ‘that gender-based discrimination is prohibited by law in the State party’ by the Law ‘On State Guarantees of Equal Rights and Equal Opportunities for Men and Women’, and specifically recommended to ensure that the Law is ‘effectively implemented’ and complemented with adoption of ’comprehensive anti-discrimination legislation’ which encompasses all internationally recognised prohibited grounds of discrimination including gender.^[3]

In an interview MP Irina Unzhakova, an initiator of the amendments, stated that there are 50 different genders and that legislators aim at reinstating two sexes: men and women. MPs also highlighted that the legislative novelties are based on ‘international best practices’.

The amendments in the Draft Law are extremely concerning as they constitute complete erasure of the concept of ‘gender’ from national legislation and replacement of the term ‘gender equality’ with the essentialist binary – ‘equality on the basis of sex’ or ‘equality of men and women’. Noting that concepts of gender and sex are not interchangable, potential effects of the Draft Law could undermine equality, non-discrimination and enjoyment of rights by everyone, especially women, gender-diverse, gender non-conforming and transgender people living in Kazakhstan.

Kazakhstan’s international human rights obligations under Articles 2 of International Covenant on Civil and Political Rights (‘ICCPR’) and International Covenant on Economic, Social and Cultural Rights (‘ICESCR’), and Article 1 of CEDAW encompass an obligation to ensure equality and non-discrimination where gender is considered as a protected characteristic along with the category of sex.^[4] The fact that the amendments contrary to international human rights law are presented to the general public and justified by Kazakhstani legislators as a positive effort to implement its international human rights obligations is a clear distortion. The ‘international best practices’ and claims of countable 50 genders, referred by lawmakers, stem from a right wing rhetoric supported by conservative lobbyist groups targeting so-called ‘gender ideology’ in a number of countries in Europe, Americas and the post-Soviet region and do not constitute widely accepted customary or treaty-based international human rights standards and practice.^[5]

At the 2019 Nairobi Summit on ICPD25 Kazakhstan made a commitment to ratify the Council of Europe Convention on preventing and combating violence against women and domestic violence (‘Istanbul Convention’), which paramountly recognises ‘the structural nature of violence against women as gender-based violence’ and provides the most comprehensive legal framework on preventing and combating violence against women to date with definitions of ‘gender’, ‘gender-based violence’, and ‘gender equality’ at its core.^[6] Incompatibility of the proposed amendments in the Draft Law with this latest international commitment demonstrates its rather outward oriented nature. On May 12^th 2021, at the Ministry of Justice, civil society held a roundtable on the discussion of the implementation of UN recommendations with representatives from the Ministry of Internal Affairs, whom reported of the Government’s intent to withdraw from the commitment to ratify the Istanbul Convention altogether as it allegedly contradicted ‘traditional values’ and imposed an obligation to deliver on LGBTQ+ rights.

The initiative to erase ‘gender’ from national legislation is another instance in a series of state-sponsored ‘anti-gender’ activities targeting the rights of women and LGBTQ+ people and stirring a backlash against sexual and reproductive rights in Kazakhstan. It follows repeated attempts of passing a ban on so-called ‘gay propaganda’ in 2015 and 2018, and 2021:^[7] providing for prohibition of dissemination of information on ‘non-traditional sexual orientation’ to minors; enactment of restrictions for trans people to exercise their right to legal gender recognition;^[8] most recently the failure of Kazakhstani legislators to adopt an early amendment suggested to the new Health Code on the introduction of some sexuality education;^[9] and a new law on combating domestic violence, and anti-bullying legislation following the demands of mobilised groups opposing the amendments throughout the 2020-2021 Parliamentary session.^[10] Among the reasoning of the latter groups are claims that sexuality education would ‘push children to change their sex’ and allegations that defining the concept of bullying would result in ‘children growing up as gays and lesbians’.

In 2021, a joint journalistic investigation by Factcheck.kz and Masa Media has revealed that the groups stirring such backlash in Kazakhstan operate in concert and are also engaged in spreading misinformation on anti-vaccination.^[11] It also shows that the groups use non-transparent funding, have transnational ties with Russian counterparts as well as connections with the Government, securing them seats in relevant parliamentary working groups.

With Kazakhstani legislators’ introduction of the ‘anti-gender’ Draft Law and rejection of legislation combating domestic violence, bullying, and strengthening sexual and reproductive rights, Kazakhstan thus follows the suit of the decades long global backlash against so-called ‘gender ideology’ catching up with a conservative trend sweeping Central and Eastern Europe, Russia, and the post-Soviet region. While previously legislative and policy changes targeting gender were channelled rather covertly through state institutions, they are now increasingly lobbied and openly advocated by means of organised conservative groups and private actors using the language of rights and public participation. The legislators’ sway towards demands of such groups to the detriment of the state’s obligation under international human rights law is an alarming sign.

2020 research conducted by Alma-TQ, a local transgender group, illustrates that 80 per cent of the respondents had faced discrimination or violence on the basis of their gender identity, 70 per cent had faced psychological abuse, and a third of Trans people were subject to physical violence.^[12] With lack of protection in law and in practice, the adoption of the Draft Law will mean decreasing space for free expression, exacerbate violence and hate targeting women, gender-diverse, gender non-conforming and transgender people who already face harassment, the threat of violence, and discrimination in access to justice, healthcare, education, and employment on a daily basis.^[13]

In his latest 2021 report on Gender Theory, the UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (‘SOGI’) Victor Madrigal-Borloz has highlighted that it is a state obligation to recognise that lack of legal recognition of gender and gender identity is an enabling factor of violence, hate, and rights violations on the basis of SOGI and that narratives that imperil rights of women perpetuate discriminatory stereotypes regarding trans and gender diverse people.^[14] With this and states bearing responsibility for activities of private actors under international human rights law, the move to hand over the responsibility for the gender backlash and ongoing erosion of women and LGBTQ+ rights to private anti-gender groups coupled with state’s inaction to explicitly recognise those rights in the national legislation do not spare the Kazakhstani Government and legislators from their international obligations to respect, protect, and fulfil the rights.^[15]

Contrary to the right to participate in public affairs under Article 25 of ICCPR and Article 33 of the Constitution of Kazakhstan, the drafting of the ‘anti-gender’ bill, along with the amendments aimed at strengthening legislation on domestic violence and sexual and reproductive rights being rejected amidst the height of pandemic under the state-wide quarantine with little or no transparency and minimal participation of independent civil society organisations and representatives with relevant expertise.^[16] This further demonstrates that the timing is not an accident but rather regarded by the legislators as propitious time to seize an opportunity to evade public scrutiny for the reactionary ‘catch up’ with conservative global backlash thriving in Europe and Russia. With the existing national gender machinery and related mechanisms established in Kazakhstan in 2000s as a part of the donor-driven liberal project complementing economic restructuring, the ‘catch up’ demonstrates socio-political effects of the path-dependent character of neoliberal reform projects in Kazakhstan.^[17]

Recommendations

In light of the above, the state should:

• Reject the amendments in the Draft Law on the complete erasure of the concept of ‘gender’ from national legislation and replacement of the term ‘gender equality’ with ‘equality on the basis of sex’ and (or) ‘equality of men and women’. Reinstate and reinforce the concepts of ‘gender’ and ‘gender equality’ throughout the national legislation and in practice;
• Implement its international human rights obligations on equality and non-discrimination in compliance with provisions of Articles 2 of ICCPR and ICESCR, Article 1 of CEDAW, and recommendations of the respective treaty bodies;
• Include and consult with independent civil society organisations and activists, with relevant expertise in the field of gender equality, non-discrimination, and sexual and reproductive rights at all stages of further discussions of the Draft Law and related bills;
• To conduct a wide awareness raising campaign on explanation of concepts of ‘gender’ and ‘gender equality’ across state bodies and wider public with participation of independent civil society organisations and activists, with expertise in the field of gender equality, non-discrimination, and sexual and reproductive rights, and take positive measures to counter the narratives around so-called ‘gender ideology’ used by conservative lobbyist groups to misinform communities and undermine the advancement of gender equality, women’s and LGBTQ+ rights;
• Accelerate ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence with de facto adherence to Convention’s fundamental principles and implementation of its comprehensive legal framework upholding ‘gender equality’ as well as preventing and combating ‘gender based violence’; and
• Hold accountable state and private actors, including mobilised ‘anti-gender’ groups, for spreading misinformation, use of opaque funding schemes, investigate their ties with transnational networks inciting hate, violence, restriction of human rights, and take positive actions to stop privileged access to decision-making for such opponents of women’s and LGBTQ+ rights.

Aigerim Kamidola is an independent consultant in international human rights law, researcher, a Visiting Scholar at the Institute for the Study of Human Rights at Columbia University. Her expertise spans across-the-board grassroots advocacy work at national and international (UN, OSCE, EU) levels, including: monitoring and documenting discrimination and hate crimes against women on the basis sexual orientation and gender identity; engagement with national justice and judicial authorities as well as UN treaty bodies, special procedures and Universal Periodic Review mechanisms (shadow reporting, thematic reporting, national consultations, follow up procedure, individual communications); drafting road maps for the implementation of UN recommendations; conducting thematic grassroots research; analysis of existing legislation and draft bills (including so-called ‘anti-gender’ and ‘gay propaganda’ bills, ‘List of banned jobs for women’); provision of legal support on LBQT* women’s rights, discrimination, freedom of assembly and association cases. Aigerim has academic background in international human rights law and interdisciplinary studies with prior experience in strategic litigation, provision of direct support to human rights defenders, and capacity building in Central Asia and the wider post-Soviet region. Aigerim is a graduate of the Edinburgh Law School and Al-Farabi Kazakh National University. She also holds a joint master’s degree in international human rights policy and practice from the Pedro Arrupe Human Rights Institute, the University of Gothenburg, and the University of Roehampton.

Image by Francisco Anzola under (CC).

^[1] Parliament of the Republic of Kazakhstan, accessible at: http://www.parlam.kz/ru/mazhilis/itreceived

^[2] Committee on the Elimination of Discrimination against Women, General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/GC/28, December 2010, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/GC/28&Lang=en

^[3] Committee on the Elimination of Discrimination against Women, Concluding observations on the fifth periodic report of Kazakhstan, CEDAW/C/KAZ/CO/5, November 2019, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/KAZ/CO/5&Lang=en

^[4] Committee on the Elimination of Discrimination against Women, General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/GC/28, December 2010, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/GC/28&Lang=en

^[5] Claire Provost, Tatev Hovhannisyan, ‘Home-grown’ European funding for religious extremism overshadows foreign cash, openDemocracy, June 2021, https://www.opendemocracy.net/en/5050/home-grown-european-funding-for-religious-extremism-overshadows-foreign-cash/?fbclid=IwAR2bGfboYkfHy6j1vO7ZEyddnCAj43T7EOnsOjM6h-YWEAv_CyZtfGi46mo; Claire Provost, Nandini Archer, Revealed: $280m ‘dark money’ spent by US Christian right groups globally, openDemocracy, October 2020, https://www.opendemocracy.net/en/5050/trump-us-christian-spending-global-revealed/

^[6] New Bill in the Republic of Kazakhstan on prevention and response to gender-based violence and ratification of Istanbul Convention, November 2020, https://www.nairobisummiticpd.org/region/kazakhstan; Council of Europe Convention on preventing and combating violence against women and domestic violence, Preamble, May 2011, https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/090000168008482e; Council of Europe Convention on preventing and combating violence against women and domestic violence, Articles 2 and 3, May 2011 https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/090000168008482e

^[7] Law ‘On protection of children from information harming their health and development’, 2015; Ministry of Information and Communication of the Republic of Kazakhstan, the Instruction ‘On Classification of Informational Products’ and ‘Methodology of Defining Informational Products for Children (Not) Harming Their Health and Development’, 2018.

^[8] Aisha Zhenishbekova, Kazakhstan: New Rules of Gender Transitioning Make it Difficult to Access Medical Assistance, CABAR.asia, April 2021, https://cabar.asia/en/kazakhstan-new-rules-of-gender-transitioning-make-it-difficult-to-access-medical-assistance

^[9] Юна Коростелёва, Сексуально непросвещенные, Vlast.kz, May 2020, https://vlast.kz/obsshestvo/39711-seksualno-neprosvesennye.html

^[10] Viktoriya Kim, Kazakhstan’s Domestic Violence Survivors Push for Legal Protections, Human Rights Watch, December 2020, https://www.hrw.org/news/2020/12/22/kazakhstans-domestic-violence-survivors-push-legal-protections; Маншук Асаутай, Проект о противодействии семейному насилию. Чем вызваны споры? Радио Азаттык, January 2021, https://rus.azattyq.org/a/kazakhstan-new-draft-domestic-violence/31062716.html; Амина Чайа, Что такое буллинг и нужен ли Казахстану закон о нем? masa.media, April 2021, https://masa.media/ru/site/bulling-zakon-kazakhstan#mcetoc_1f37eqkff1q

^[11] Досье: Кто стоит за лоббированием отмены законов и распространением конспирологии в Казахстане, Factcheck.kz, February 2021, https://factcheck.kz/socium/dose-kto-stoit-za-lobbirovaniem-otmeny-zakonov-i-rasprostraneniem-konspirologii-v-kazaxstane/?fbclid=IwAR2Pc0pBtkn32NU4srS1O59qTst4rcBEWlmF_eE09oz6-ttMTH4Vupqhtug Кто стоит за лоббированием отмены законов и распространением конспирологии в Казахстане, masa.media, February 2021, https://masa.media/ru/site/kto-stoit-za-lobbirovaniem-otmeny-zakonov-i-rasprostraneniem-konspirologii-v-kazakhstane#mcetoc_1ev9f7fab3n

^[12] Alma-TQ Initiative Group, Мы живём, пока нас не видят, 2020, https://www.alma-tq.org/biblioteka

^[13] Alternative Report on Implementation of the Convention on the Elimination of All Forms of Discrimination Against Women in Kazakhstan to the Fifth Periodic Report by the Kazakhstan, January 2019, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCEDAW%2fCSS%2fKAZ%2f33738&Lang=en

^[14] UN Human Rights Council, Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, A/HRC/47/27, June 2021, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G21/123/16/PDF/G2112316.pdf?OpenElement

^[15] Convention on the Elimination of Discrimination against Women, Article 2(e), December 1979, https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx

^[16] Constitution of the Republic of Kazakhstan, Article 33, August 1995, https://online.zakon.kz/Document/?doc_id=1005029

^[17] Светлана Шакирова, Женское движение в Центральной Азии: “еще не” или “уже в прошлом?” Гендерные исследования, September 2006, http://d1019822.idhost.kz/site03/politol/8.php; Алтынай Камбекова, “Вызовы феминистской солидарности в Казахстане” in Голоса феминизма в центральной Азии. Сборник эссе, (Almaty: The Rosa-Luxemburg-Stiftung Central Asia, 2020), 75-85.