Yogyakarta Principles

The Yogyakarta Principles is a document about human rights in the areas of sexual orientation and gender identity that was published as the outcome of an international meeting of human rights groups in Yogyakarta, Indonesia, in November 2006. The principles were supplemented and expanded in 2017 to include new grounds of gender expression and sex characteristics and a number of new principles. However, the Principles have never been accepted by the United Nations (UN) 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.
The principles and the supplement contain a set of precepts intended to apply the standards of international human rights law to address the abuse of human rights of lesbian, gay, bisexual, transgender, and intersex (LGBTI) people.
The Principles themselves are a lengthy document addressing legal matters. A website that was established to hold the principles and to make them accessible has an overview of the principles, reproduced here in full:
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, 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.
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 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. The Irish human rights expert Michael O'Flaherty was rapporteur responsible for drafting and development of the Yogyakarta Principles adopted at the meeting. Vitit Muntarbhorn and Sonia Onufer Corrêa were the co-chairpersons.
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". 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. However the Principles are intended to serve as an interpretive aid to the human rights treaties.
Among the 29 signatories of the principles were Mary Robinson, Manfred Nowak, Martin Scheinin, Mauro Cabral, Sonia Corrêa, 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, affirming binding international legal standard with which all States must comply but some states have expressed reservations.
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, invasion of privacy, arbitrary arrest and imprisonment, medical abuse, denial of free speech and assembly and discrimination, prejudice and stigmatization 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.
The finalised Yogyakarta Principles was launched as a global charter on 26 March 2007 at a public event in Geneva, timed to coincide with the main session of the United Nations Human Rights Council. 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".
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.
On 10 November 2017, the "Yogyakarta Principles plus 10" (The YP +10) to the supplement the Principles, formally as "Additional Principles and State Obligation on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Expression and Sex Characteristics to Complement the Yogyakarta Principles", emerged from the intersection of the developments in international human rights law with the emerging understanding of violations suffered by person on ground of sexual orientation and gender identity and the recognition of the district and intersectional grounds of gender expression and sex characteristics.
The update was drafted by a committee of Mauro Cabral Grinspan, Morgan Carpenter, Julia Ehrt, Sheherezade Kara, Arvind Narrain, Pooja Patel, Chris Sidoti and Monica Tabengwa. Signatories additionally include Philip Alston, Edwin Cameron, Kamala Chandrakirana, Sonia Onufer Corrêa, David Kaye, Maina Kiai, Victor Madrigal-Borloz, Sanji Mmasenono Monageng, Vitit Muntarbhorn, Sunil Pant, Dainius Puras, Ajit Prakash Shah, Sylvia Tamale, Frans Viljoen, and Kimberly Zieselman.
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.
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]".
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 addressed the situation of sexual minority women in Kyrgyzstan and recommended that, 'lesbianism be reconceptualised as a sexual orientation and that penalties for its practice be abolished'.
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. 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. In the ensuing discussion, the majority of General Assembly Third Committee members recommended against adopting the principles. The Representative of Malawi, speaking on behalf of all African States argued that the report:
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." 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". The Russian Federation expressed "its disappointment and fundamental disagreement with the report," writing of the rapporteur:
The Council of Europe states in "Human Rights and Gender Identity" that Principle 3 of the Yogyakarta Principles is "of particular relevance". 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, 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."
However, the Principles have been cited by numerous national governments and court judgments. The principles influenced the proposed UN declaration on sexual orientation and gender identity in 2008.
Human rights and LGBT-rights groups took up the principles, and discussion has featured in the gay press, as well as academic papers and text books (see bibliography).
In a unanimous decision on May 5, 2011, the Brazilian Supreme Federal Court became the first supreme court in the world to recognize same-sex civil unions as a family entity equal in rights to a heterosexual one, as certified by UNESCO, expressly citing the Yogyakarta Principles as a significant legal guideline:
The Supreme Court of India relied on the Yogyakarta Principles (2007), when ruling in the case of NLSA v. Union of India (2014), which recognised the right to self-identify gender and recognized non-binary gender as "Third Gender." The court held that Yogyakarta Principles must be recognised and followed as long as they are consistent with the fundamental rights enshrined in the Constitution of India.
The Constitutional Bench of the Supreme Court of India held that the Yogyakarta Principles (2007) conform to the constitutional view of fundamental rights, when decriminalizing homosexuality in the case of Navtej Singh Johar v. Union of India (2018). In his concurring opinion, Justice R.F. Nariman said,
Essentially, the Supreme Court read the Yogyakarta Principles (2007) into the Fundamental Rights of the Indian Constitution.
The Yogyakarta Principles mention intersex people only briefly. In a manual on Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics the Asia Pacific Forum of National Human Rights Institutions (APF) states, "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."
Those issues were addressed in the Yogyakarta Principles plus 10 update. Boris Dittrich of Human Rights Watch comments that the new update "protects intersex children from involuntary modification of their sex characteristics".