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 issues of intersexuality. The 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 in 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 smallest province of Indonesia (excluding Jakarta) located on the island of Java. 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] Hovever the Principles are insisted to be relevant to the human rights treaties they interpret.[3]
Among the 29 signatories of the principles were Mary Robinson, Manfred Nowak, Martin Scheinin, 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, 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]
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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]
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.[12]
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]".[13]
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’.
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.[14][15] 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 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,[16] 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.[17]
On 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.[18] In the ensuing discussion, the majority of General Assembly Third Committee members recommended against adopting the principles.[19] For instance, 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.[20]
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."[21] The representative of Mauritania, speaking on behalf of the Group of Arab States, 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".[22] 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.[23]
Meanwhile, the Council of Europe states in "Human Rights and Gender Identity" that Principle 3 of the Yogyakarta Principles is "of particular relevance":[24] 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 new 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,[25] in which the parliamentarians argued that the prejudice that "homosexuality is immoral" is a "subjective view usually based on religious dogma that, in a democratic society, cannot be a basis for limiting the rights of others." They also 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."[25]
Piero A. Tozzi, of the Catholic Family and Human Rights Institute, issued a briefing paper ‘Six Problems with the Yogyakarta Principles’.[17][26] He argues that where Principle 24 seeks to recognize the diversity of family forms, this could devalue the concept of the family by including any grouping of two (or more) people. He also argues that Principles 20 and 21 could be used to restrict freedom of speech.
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,[27] reproduced here in full:
Sexual education is a basic tool for ending discrimination against persons of diverse sexual orientations. A very important contribution to thinking in this area was made by the 2006 Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity. The Special Rapporteur fully endorses the precepts of Principle 16, referring specifically to the right to education.