Yogyakarta Principles

The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity is a set of principles relating to sexual orientation and gender identity, intended to apply international human rights law standards to address the abuse of the human rights of lesbian, gay, bisexual and transgender (LGBT) people, and (briefly) intersex people. The Principles were developed to enhance the individual sovereignty of subjective identity, a principal articulated in a host of international human rights laws that protect the authentic reality of individual identity and sovereignty from the legal fictions and social constructs of national or state collectivist ideologies. The issue is further articulated by the struggles of indigenous peoples, gender and religious identity communities worldwide.

The Yogyakarta Principles were developed at a meeting of the International Commission of Jurists, the International Service for Human Rights and human rights experts from around the world at Gadjah Mada University on Java from 6 to 9 November 2006. The concluding document "contains 29 principles adopted unanimously by the experts, along with recommendations to governments, regional intergovernmental institutions, civil society, and the UN itself".^[1] The principles are named after Yogyakarta, the city where the conference was held. These principles have not been adopted by States in a treaty, and are thus not by themselves a legally binding part of international human rights law.^[2] However the Principles are intended to serve as an interpretive aid to the human rights treaties.^[3]

Among the 29 signatories of the principles were Mary Robinson, Manfred Nowak, Martin Scheinin, Mauro Cabral, Elizabeth Evatt, Philip Alston, Edwin Cameron, Asma Jahangir, Paul Hunt, Sanji Mmasenono Monageng, Sunil Babu Pant, Stephen Whittle and Wan Yanhai. The signatories intended that the Yogyakarta Principles should be adopted as a universal standard,^[4] affirming binding international legal standard with which all States must comply^[5] but some states have expressed reservations.^[6]

In alignment with the movement towards establishing basic human rights for all people, the Yogyakarta Principles specifically address sexual orientation and gender identity. The Principles were developed in response to patterns of abuse reported from around the world. These included examples of sexual assault and rape, torture and ill-treatment, extrajudicial executions, honour killing,^[7] invasion of privacy, arbitrary arrest and imprisonment, medical abuse, denial of free speech and assembly and discrimination, prejudice and stigmatization^[8] in work, health, education, housing, family law, access to justice and immigration. These are estimated to affect millions of people who are, or have been, targeted on the basis of perceived or actual sexual orientation or gender identity.^[9] The Principles have never been accepted by the United Nations and the attempt to make gender identity and sexual orientation new categories of non-discrimination has been repeatedly rejected by the General Assembly, the UN Human Rights Council and other UN bodies.

Background

The website promoting the Principles notes that concerns have been voiced about a trend of people's human rights being violated because of their sexual orientation or gender identity. While the United Nations human rights instruments detail obligations to ensure that people are protected from discrimination and stereotypes,^[10] which includes people's expression of sexual orientation or gender identity, implementation of these rights has been fragmented and inconsistent internationally. The Principles aim to provide a consistent understanding about application of international human rights law in relation to sexual orientation and gender identity.^[4]

Development

From 6 to 9 November 2006, an international seminar of legal experts on human rights took place at Yogyakarta, Indonesia. The seminar clarified the nature, scope and implementation of states' human rights obligations under existing human rights treaties and law, in relation to sexual orientation and gender identity. The principles that developed out of this meeting were adopted by human rights experts from around the world, and included judges, academics, a former UN High Commissioner for Human Rights, NGOs and others.^[4] The Irish human rights expert Michael O'Flaherty was rapporteur responsible for drafting and development of the Yogyakarta Principles adopted at the meeting.^[11] Vitit Muntarbhorn and Sonia Onufer Corrêa were the co-chairpersons.^[5]

Reasoning

The compilers explain that the Principles detail how international human rights law can be applied to sexual orientation and gender identity issues, in a way that affirms international law and to which all states can be bound. They maintain that wherever people are recognised as being born free and equal in dignity and rights, this should include LGBT people. They argue that human rights standards can be interpreted in terms of sexual orientation and gender identity when they touch on issues of torture and violence, extrajudicial execution, access to justice, privacy, freedom from discrimination, freedom of expression and assembly, access to employment, health-care, education, and immigration and refugee issues. The Principles aim to explain that States are obliged to ensure equal access to human rights, and each principle recommends how to achieve this, highlighting international agencies' responsibilities to promote and maintain human rights.^[4]

The Principles are based on the recognition of the right to non-discrimination. The Committee on Economic, Social and Cultural Rights (CESCR) has dealt with these matters in its General Comments, the interpretative texts it issues to explicate the full meaning of the provisions of the International Covenant on Economic, Social and Cultural Rights. In General Comments Nos. 18 of 2005 (on the right to work), 15 of 2002 (on the right to water) and 14 of 2000 (on the right to the highest attainable standard of health), it indicated that the Covenant proscribes any discrimination on the basis of, inter alia, sex and sexual orientation "that has the intention or effect of nullifying or impairing the equal enjoyment or exercise of [the right at issue]".^[12]

The Committee on the Elimination of Discrimination against Women (CEDAW), notwithstanding that it has not addressed the matter in a General Comment or otherwise specified the applicable provisions of the Convention on the Elimination of All Forms of Discrimination Against Women, on a number of occasions has criticised states, for discrimination on the basis of sexual orientation. For example, it also addressed the situation in Kyrgyzstan and recommended that, ‘lesbianism be reconceptualised as a sexual orientation and that penalties for its practice be abolished’.

Launch and response

The finalised Yogyakarta Principles was launched as a global charter for gay rights on 26 March 2007 at the United Nations Human Rights Council in Geneva.^[13][14] Michael O’Flaherty, spoke at the International Lesbian and Gay Association (ILGA) Conference in Lithuania on 27 October 2007; he explained that "all human rights belong to all of us. We have human rights because we exist – not because we are gay or straight and irrespective of our gender identities", but that in many situations these human rights are not respected or realised, and that "the Yogyakarta Principles is to redress that situation".^[11]

The Yogyakarta Principles were presented at a United Nations event in New York City on 7 November 2007, co-sponsored by Argentina, Brazil and Uruguay. Human Rights Watch explain that the first step towards this would be the de-criminalisation of homosexuality in 77 countries that still carry legal penalties for people in same-sex relationships, and repeal of the death penalty in the seven countries that still have the death penalty for such sexual practice.^[9]

Human rights and LGBT-rights groups took up the principles, and discussion has featured in the gay press,^[15] as well as academic papers and text books (see bibliography).

These principles, while explaining the way existing human rights statutes need to be applied in specific situations relevant to LGBT people's experience, influenced the proposed UN declaration on sexual orientation and gender identity in 2008.^[16]

Controversy

In July 2010, Vernor Muñoz, United Nations Special Rapporteur on the Right to Education, presented to the United Nations General Assembly an interim report on the human right to comprehensive sexual education, in which he cited the Yogyakarta Principles as a Human Rights standard.^[17] In the ensuing discussion, the majority of General Assembly Third Committee members recommended against adopting the principles.^[18] The Representative of Malawi, speaking on behalf of all African States argued that the report:

Reflected an attempt to introduce controversial notions and a disregard to the Code of Conduct for Special Procedures Mandate-holders as outlined in Human Rights Council resolution 8/4. She expressed alarm at the reinterpretation of existing human rights instruments, principles and concepts. The report also selectively quoted general comments and country-specific recommendations made by treaty bodies and propagated controversial and unrecognized principles, including the so-called Yogyakarta Principles, to justify his personal opinion.^[6]

Trinidad and Tobago, on behalf of the Caribbean States members of CARICOM, argued that the special rapporteur "had chosen to ignore his mandate, as laid down in Human Rights Council resolution 8/4, and to focus instead on the so-called 'human right to comprehensive education.' Such a right did not exist under any internationally agreed human rights instrument or law and his attempts to create one far exceeded his mandate and that of the Human Rights Council."^[19] The representative of Mauritania, speaking on behalf of the Arab League, said that the Arab States were "dismayed" and accused the rapporteur of attempting to promote "controversial doctrines that did not enjoy universal recognition" and to "redefine established concepts of sexual and reproductive health education, or of human rights more broadly".^[20] The Russian Federation expressed "its disappointment and fundamental disagreement with the report," writing of the rapporteur:

As justification for his conclusions, he cited numerous documents which had not been agreed to at the intergovernmental level, and which therefore could not be considered as authoritative expressions of the opinion of the international community. In particular, he referred to the Yogyarkarta Principles and also to the International Technical Guidance on Sexuality Education. Implementation of various provisions and recommendations of the latter document would result in criminal prosecution for such criminal offences as corrupting youth.^[21]

Meanwhile, the Council of Europe states in "Human Rights and Gender Identity"^[22] that Principle 3 of the Yogyakarta Principles is "of particular relevance". Because same sex marriage is possible only in five member states of the Council of Europe, transgender persons who are already married usually have to divorce prior to their real gender being officially recognised, although in many cases they would prefer to remain a legally recognised family unit, especially if they have children. Such enforced divorces may have a negative impact on the children of the marriage.(3.2.2) They recommend that member states "abolish sterilisation and other compulsory medical treatment as a necessary legal requirement to recognise a person's gender identity in laws regulating the process for name and sex change," (V.4) as well as to "make gender reassignment procedures, such as hormone treatment, surgery and psychological support, accessible for transgender persons, and ensure that they are reimbursed by public health insurance schemes." (V.5) Similarly, the Parliamentary Assembly of the Council of Europe adopted a document titled "Discrimination on the basis of sexual orientation and gender identity" on 23 March 2010,^[23] describing the prejudice that "homosexuality is immoral" as a "subjective view usually based on religious dogma that, in a democratic society, cannot be a basis for limiting the rights of others." The document argued that the belief that "homosexuality is worsening the demographic crisis and threatening the future of the nation" is "illogical," and that "granting legal recognition to same-sex couples has no influence on whether heterosexuals marry or have children."^[23] A US-based Christian think tank, the Catholic Family and Human Rights Institute, claimed that the Principles could devalue the concept of the family and could be used to restrict freedom of speech.^[16][24]

Overview

The Principles themselves are a lengthy document addressing legal matters. A website established to hold the principles and make them accessible has an overview of the principles,^[25] reproduced here in full:

• Preamble: The Preamble acknowledges human rights violations based on sexual orientation and gender identity, which undermine the integrity and dignity, establishes the relevant legal framework, and provides definitions of key terms.
• Rights to Universal Enjoyment of Human Rights, Non-Discrimination and Recognition before the Law: Principles 1 to 3 set out the principles of the universality of human rights and their application to all persons without discrimination, as well as the right of all people to recognition as a person before the law without sex reassignment surgery or sterilisation.
  • Example:
    • Laws criminalising homosexuality violate the international right to non-discrimination (decision of the UN Human Rights Committee).
• Rights to Human and Personal Security: Principles 4 to 11 address fundamental rights to life, freedom from violence and torture, privacy, access to justice and freedom from arbitrary detention, and human trafficking.^[26]
  • Examples:
    • The death penalty continues to be applied for consensual adult sexual activity between persons of the same sex, despite UN resolutions emphasizing that the death penalty may not be imposed for "sexual relations between consenting adults."
    • Eleven men were arrested in a gay bar and held in custody for over a year. The UN Working Group on Arbitrary Detention concluded that the men were detained in violation of international law, noting with concern that "one of the prisoners died as a result of his arbitrary detention".
• Economic, Social and Cultural Rights: Principles 12 to 18 set out the importance of non-discrimination in the enjoyment of economic, social and cultural rights, including employment, accommodation, social security, education, sexual and reproductive health including the right for informed consent and sex reassignment therapy.
  • Examples:
    • Lesbian and transgender women are at increased risk of discrimination, homelessness and violence (report of United Nations Special Rapporteur on adequate housing).
    • Girls who display same-sex affection face discrimination and expulsion from educational institutions (report of UN Special Rapporteur on the right to education).
    • The United Nations High Commissioner for Human Rights has expressed concern about laws which "prohibit gender reassignment surgery for transsexuals or require intersex persons to undergo such surgery against their will".
• Rights to Expression, Opinion and Association: Principles 19 to 21 emphasise the importance of the freedom to express oneself, one’s identity and one’s sexuality, without State interference based on sexual orientation or gender identity, including the rights to participate peaceably in public assemblies and events and otherwise associate in community with others.
  • Example:
    • A peaceful gathering to promote equality on the grounds of sexual orientation and gender identity was banned by authorities, and participants were harassed and intimidated by police and extremist nationalists shouting slogans such as "Let’s get the fags" and "We’ll do to you what Hitler did with Jews" (report of the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia & related intolerance).
• Freedom of Movement and Asylum: Principles 22 and 23 highlight the rights of persons to seek asylum from persecution based on sexual orientation or gender identity.
  • Example:
    • Refugee protection should be accorded to persons facing a well-founded fear of persecution based on sexual orientation (Guidelines of the United Nations High Commissioner for Refugees).^[7]
• Rights of Participation in Cultural and Family Life: Principles 24 to 26 address the rights of persons to participate in family life, public affairs and the cultural life of their community, without discrimination based on sexual orientation or gender identity.
  • Example:
    • States have an obligation not to discriminate between different-sex and same-sex relationships in allocating partnership benefits such as survivors’ pensions (decision of the UN Human Rights Committee).
• Rights of Human Rights Defenders: Principle 27 recognises the right to defend and promote human rights without discrimination based on sexual orientation and gender identity, and the obligation of States to ensure the protection of human rights defenders working in these areas.
  • Examples:
    • Human rights defenders working on sexual orientation and gender identity issues in countries and regions around the world "have been threatened, had their houses and offices raided, they have been attacked, tortured, sexually abused, tormented by regular death threats and even killed. A major concern in this regard is an almost complete lack of seriousness with which such cases are treated by the concerned authorities." (report of the Special Representative of the UN Secretary-General on Human Rights Defenders).
• Rights of Redress and Accountability: Principles 28 and 29 affirm the importance of holding rights violators accountable, and ensuring appropriate redress for those who face rights violations.
  • Example:
    • The UN High Commissioner for Human Rights has expressed concern about "impunity for crimes of violence against LGBT persons" and "the responsibility of the State to extend effective protection. The High Commissioner notes that "excluding LGBT individuals from these protections clearly violates international human rights law as well as the common standards of humanity that define us all."
• Additional Recommendations: The Principles set out 16 additional recommendations to national human rights institutions, professional bodies, funders, NGOs, the High Commissioner for Human Rights, UN agencies, treaty bodies, Special Procedures, and others.
  • Example:
    • The Principles conclude by recognising the responsibility of a range of actors to promote and protect human rights and to integrate these standards into their work. A joint statement delivered at the United Nations Human Rights Council by 54 States from four of the five UN regions on 1 December 2006, for example, urges the Human Rights Council to "pay due attention to human rights violations based on sexual orientation and gender identity" and commends the work of civil society in this area, and calls upon "all Special Procedures and treaty bodies to continue to integrate consideration of human rights violations based on sexual orientation and gender identity within their relevant mandates." As this statement recognises, and the Yogyakarta Principles affirm, effective human rights protection truly is the responsibility of all.

Intersex and the Yogyakarta Principles

The Yogyakarta Principles mention intersex only briefly. In a manual on Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics^[27] the Asia Pacific Forum of National Human Rights Institutions (AFP) states that "The Principles do not deal appropriately or adequately with the application of international human rights law in relation to intersex people. They do not specifically distinguish sex characteristics."^[27]

Following mention of the rights of intersex people in the preamble, Principle 18B specifically addresses a key human rights issue for intersex people, criticising "irreversible medical procedures on children that attempt to impose a gender identity, without the child’s full, free and informed consent".^[27]

See also

• International human rights law
• Sexual Orientation and Gender Identity at the United Nations
• Declaration of Montreal
• Brazilian Resolution
• Intersex human rights
• World Association for Sexual Health
• LGBT topics in medicine
• LGBT people in prison – Prison rape
• Gender role
• Compulsory sterilization
• Reproductive rights
• Social exclusion – social vulnerability
• Minority rights
• Norway Statement to UN Human Rights Commission
• Yogyakarta Principles in Action
• LGBT rights by country or territory
• LGBT stereotypes
• LGBT history
• Violence against LGBT people

References

Bibliography

• The Yogyakarta Principles
• The Yogyakarta Principles (Official site of UNHCR)
• Ju Andrzejewski, Marta Baltodano, Linda Symcox, Social Justice, Peace, and Environmental Education: Transformative Standards, Routledge (2009)
• Michael O’Flaherty and John Fisher, Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles, Human Rights Law Review 2008 8(2):207–248; doi:10.1093/hrlr/ngn009
• S. Farrior, Human Rights Advocacy on Gender Issues: Challenges and Opportunities, J Human Rights Practice, March 1, 2009; 1(1): 83–100.
• Boris Dittrich, Yogyakarta Principles: applying existing human rights norms to sexual orientation and gender identity, HIV AIDS Policy Law Rev. 2008 Dec;13(2–3):92-3.
• International Lesbian, Gay, Bisexual, Trans and Intersex Association, State-sponsored Homophobia: a world survey of laws criminalising same-sex sexual acts between consenting adults, May 2011.

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