Article 7(3) of the International Criminal Court’s Rome Statute defines gender as “the two sexes, male and female, within the context of society.” It further notes that “‘gender’ does not indicate any meaning different from the above.” The product of heated negotiations between States, this definition reifies a binary view of gender, excluding from the court’s ambit whole swaths of people who do not conform to simply male or female. This Comment argues that revisiting the definition of gender is necessary in an increasingly transphobic world where violence against gender variant persons is reaching a fever pitch. Such violence may rise to the level of gender persecution—a crime against humanity—if not worse. This Comment traces the history of negotiations on Article 7(3) of the Rome Statute, identifies three approaches towards the “gender” question, and suggests a path forward. For the court to truly hold perpetrators of crimes accountable, it cannot hold to such a narrow, exclusionary understanding of gender.
