Latest posts by Arvind Narrain (see all)
Reflecting on IDAHOT’s focus on the family *
The Yogyakarta Principles on Sexual Orientation and Gender Identity: Marking ten years of SOGI jurisprudence
A South African somersault: From defending LGBT rights to denying them?
Will the UN get an expert on sexual orientation and gender identity?
On the 26 of November, 2016 we will mark an important landmark in the history of SOGI jurisprudence. It was on this day ten years ago that a group of 29 experts from around the world gathered in the Indonesian city of Yogyakarta to formulate and adopt a set of 29 principles of international law as it applied to questions of sexual orientation and gender identity. The 29 principles are a restatement of existing international law which spans core civil and political rights like the freedom of movement and assembly and the right to conscience as well as core socio-economic rights such as the right to education and the right to work.
The 29 Experts authored what has come to be known as the Yogyakarta Principles on the application of international human rights law to sexual orientation and gender identity. There principles are the origin point for what is today referred to as Sexual Orientation and Gender Identity (SOGI) jurisprudence in international law. Some of the key contributions of the Yogyakarta Principles to the struggle for dignity of LGBTI people worldwide are as under*.
Emphasizing the Universality of rights
The philosophy underlying the Yogyakarta Principles is to be found in Article 1 of the Universal Declaration of Human Rights(UDHR) which states that, ‘all human beings are born free and equal in dignity and rights.’ Principle 1 of the Yogyakarta Principles restates Article 1 of the UDHR and applies it to the question of sexual orientation and gender identity.
Principle 1 states
All human beings are born free and equal in dignity and rights. Human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights.
The conceptual task which the Yogyakarta Principles undertakes is to make explicit the implicit norm of human rights law, namely the norm of universality. This is the unifying thread underlying all the principles. Each principle clarifies that the protection guaranteed by international human rights law is to all persons regardless of sexual orientation or gender identity.
Placing sexual orientation and gender identity on the same plane
While the phrase SOGI is now well established, its important to acknowledge its parentage in Yogyakarta. Before the Yogyakarta Principles were formulated, the only concept known to international law was sexual orientation. Right from the Toonen decision of the Human Rights Committee in 1991 to the aborted Brazil resolution at the Human Rights Council in 2003 the language used was sexual orientation. The Experts at Yogyakarta took the legal equivalent of a leap in the dark when they included gender identity as well and gave birth to the new acronym SOGI. Gender identity founds its way into the principles due to the sustained advocacy by LGBT advocates from the global south for whom the inclusion of gender identity was a non negotiable article of faith. The Yogyakarta formulation was picked up by the Human Rights Council in its three resolutions in 2011, 2014 and 2016 and today the concept of Sexual Orientation and Gender Identity as co equal markers of discrimination has became established within the UN system.
Providing definitions of sexual orientation and gender identity
Surprising as it is, none of the legal decisions which preceded the Yogyakarta principles be it the Toonen decision or the decisions of the European Court of Human Rights or the decisions of the US Supreme Court, actually ventured into the terrain of defining what sexual orientation or gender identity was. We owe it to the experts at Yogyakarta for providing a legal definition which would prove an invaluable contribution. Gender Identity and Sexual Orientation as defined in the Yogyakarta principles has been quoted verbatim in judicial decisions, policy documents and used extensively by activists. The definitions which are a heavily cited part of the principles are as follows :
Sexual orientation is understood to refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.
Gender identity is understood to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.
The definition of gender identity provided by the Yogyakarta Principles has made its way back into national jurisdictions as seen by the NALSA v UOI decision on transgender rights by the Indian Supreme Court as well as the Argentinian Gender Identity Law, both of which cite the gender identity definition from the Yogyakarta Principles verbatim.
The importance of the definition of gender identity in the Principles lies in its inclusive nature. A close reading indicates that gender identity includes both those who choose to ‘modify bodily appearance or function’ so as to align the body with a ‘deeply felt internal and individual experience of gender’ as well as those who do not ‘modify’ their body but choose to express their gender through ‘dress, speech and mannerisms’. Thus technically it includes both the concepts of gender identity and gender expression in its rubric.
Developing the right to recognition before the law
Principle 3 of the Yogyakarta Principles provides for recognition before the law.
Everyone has the right to recognition everywhere as a person before the law. Persons of diverse sexual orientations and gender identities shall enjoy legal capacity in all aspects of life. Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom…
This principle emerged in international human rights law out of the struggle against the racist Nazi ideology whereby Jews were stripped of legal identity and citizenship and rendered non-citizens with no rights. The innovation which principle 3 introduces is to take the right to recognition before the law and apply it to the specific context of gender identity and sexual orientation. From the point of view of transgender people around the world, this is a central axis of struggle. Legal systems around the world routinely deny transgender persons legal recognition in the gender of their choice. Transgender people are rendered ‘rightless’ due to the inability of the legal system to recognise the fundamental right of transgender people to choose one’s gender.
Principle 3 has since then found its way into the domestic legislations of Argentina, Ireland and Malta all of which recognize the right to choose one’s gender.
Moving beyond zonal privacy
Principle 6 enshrines the right to privacy.
Everyone, regardless of sexual orientation or gender identity, is entitled to the enjoyment of privacy without arbitrary or unlawful interference, including with regard to their family, home or correspondence as well as to protection from unlawful attacks on their honour and reputation. The right to privacy ordinarily includes the choice to disclose or not to disclose information relating to one’s sexual orientation or gender identity, as well as decisions and choices regarding both one’s own body and consensual sexual and other relations with others.
The right to privacy is normally seen as the right not to be interrupted in the peaceful enjoyment of one’s home. The Yogyakarta principles go beyond this understanding and crystallize a notion of privacy as including ‘decisions and choices regarding both one’s own body and consensual sexual and other relations with others’. What principle 6 does is take privacy beyond the notion of ‘zonal privacy’ to also include ‘decisional privacy’ and ‘relational privacy’. Thus when we say that anti sodomy laws violate the right to privacy, we are not asserting the patriarchal understanding that a ‘mans home is his castle’ (i.e. the untrammelled right to do what we want in the zone of the home) but asserting that forming intimate ties with others of the same sex is a part of ‘relational privacy’ and ‘decisional privacy’. The jurisprudence on privacy in principle 6 links privacy through the notion of ‘decisional and relational privacy’ to the conceptual framework provided by ‘dignity’ and ‘autonomy’.
The broad understanding of privacy as embodied in principle 6 found an expression in the decision of the Delhi High Court in Naz Foundation v NCR Delhi in 2009 which decriminalised same sex relations in India and understood privacy as moving beyond the zonal to include relational and decision aspects. One hopes that future decisions on constitutional challenges to anti sodomy laws will reflect the broad understanding of privacy as embodied in Principle 6.
Addressing the need for protection from medical abuse
Principle 18 addresses another possible violator of rights i.e. the medical profession. Principle 18 states
No person may be forced to undergo any form of medical or psychological treatment, procedure, testing, or be confined to a medical facility, based on sexual orientation or gender identity. Notwithstanding any classifications to the contrary, a person’s sexual orientation and gender identity are not, in and of themselves, medical conditions and are not to be treated, cured or suppressed.
While the law, state and society are key violators of rights on grounds of sexual orientation and gender identity, principle 18 draws attention to the role of medicine and the medical establishment. One of the sources of violation is the World Health Organisation (WHO) authored International Classification of Diseases-10 (ICD-10) under which both gender identity and ‘ego dystonic sexual orientation’ are psychological disorders and hence conditions to be cured. This in turn is responsible for aversion therapy, hormonal therapy and other forms of invasive medical procedures all of which are ‘treatments’ for changing one’s sexual orientation. As far as the pathologisation of gender identity is concerned, transgender advocates have argued that while consensual medical intervention is necessary it should not be under a rubric, which pathologises gender identity.
As far as SOGI jurisprudence has travelled, there is still long way to go. We need to keep invoking the core idea, universality, whenever LGBTI persons human rights are violated.
While the use of the principles to combat both violence and discrimination is important we should also remember that the principles were formulated 10 years ago. These ten years have witnessed the exponential growth of SOGI jurisprudence and concepts which were unknown at that time are today finding their way into legislation and policy.
One example would be the use of the term sex characteristics by the Gender Identity, Gender Expression and Sex Characteristics Act, in Malta, to conceptualize the basis on which intersex infants are subjected to medically unnecessary intervention. The rights of trans sex workers and the rights of LGBT refugees which are often ignored may require specific elaboration within the framework of the established principles.
There is a need to both reanimate the principles and to fill in its gaps so that Yogyakarta Principles continue to be the beating heart of SOGI jurisprudence in the years to come.
*This article elaborates on some of the themes articulated by PoojaPatel and Arvind Narrain in the piece you can read here.