Application of Yogyakarta Principles to Decriminalisation & Non-Discrimination – APF Bali 2010

“No human being should be subject to discrimination, violence, criminal sanctions, or abuse, simply because of their perceived sexual orientation or gender identity.”

–          Ms. Navanethem Pillay, UN High Commissioner for Human Rights

 

(i) Decriminalisation of same-sex conduct between consenting adults and decriminalisation of expressions of gender identity

  • Everyone, regardless of sexual orientation or gender identity, is entitled to the enjoyment of privacy without unlawful or arbitrary interference, to freedom from arbitrary deprivation of liberty, to the highest attainable standard of physical and mental health, to freedom of expression and to the enjoyment of all human rights without discrimination on the basis of sexual orientation or gender identity.
    (YPs, Principles 2, 6, 7, 17 & 19)
  • States shall repeal all laws that criminalise consensual sexual activity among persons of the same sex who are over the age of consent, and ensure that an equal age of consent applies to both same-sex and different-sex sexual activity;
    (YPs, Principle 6B)
  • States shall ensure that criminal and other legal provisions of general application are not applied to de facto criminalise consensual sexual activity among persons of the same sex who are over the age of consent, and eliminate vaguely worded criminal law provisions that invite discriminatory application or otherwise provide scope for arrests based on prejudice;
    (YPs, Principle 6C, 7A)
  • States shall repeal any law that prohibits or criminalises the expression of gender identity, including through dress, speech or mannerisms, or that denies to individuals the opportunity to change their bodies as a means of expressing their gender identity;
    (YPs, Principle 6D)
  • Laws criminalising same-sex conduct among consenting adults or diverse gender expressions violate internationally protected rights, even if they are not actively enforced.
    (UN Human Rights Committee, Toonen v. Australia)

(ii) Inclusion of sexual orientation and gender identity in anti-discrimination legislation

  • Everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity. The law shall prohibit any such discrimination and guarantee to all persons equal and effective protection against any such discrimination.
    (YPs, Principle 2)
  • States shall adopt appropriate legislative and other measures to prohibit and eliminate discrimination in the public and private spheres on the basis of sexual orientation and gender identity.
    (YPs, Principle 2C)

(iii) Recognition of self-defined gender identity

  • Everyone has the right to recognition everywhere as a person before the law.  No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity. No status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a person’s gender identity.
    (YPs, Principle 3)

 

  • States shall ensure that all persons are accorded legal capacity in civil matters, without discrimination on the basis of sexual orientation or gender identity, and the opportunity to exercise that capacity, take all necessary legislative, administrative and other measures to fully respect and legally recognise each person’s self-defined gender identity, and take all necessary legislative, administrative and other measures to ensure that procedures exist whereby all State-issued identity papers which indicate a person’s gender/sex reflect the person’s profound self-defined gender identity.
    (YPs, Principles 3A-C)

(iv) Others laws, policies and practices that adversely impact persons on the basis of sexual orientation or gender identity

  • These might include any other issues referenced in the YPs (or perhaps an endorsement of the YPs generally), including: adequate protection from hate crimes and acts of violence (YPs, Principle 5), obligations to create an environment conducive to human rights, including through police trainings and public awareness programmes (YPs, Principle 1C, 2F, 5A, 7C), realisation of the right to health and other economic, social or cultural rights (YPs, Principles 12-18), adequate refugee programmes (YPs, Principle 23), recognition of rights to participate in social, cultural or family life without discrimination (YPs, Principles 24-26), etc.

(v) Protection of human rights defenders

  • Everyone has the right, individually and in association with others, to promote the protection and realisation of human rights at the national and international levels, without discrimination on the basis of sexual orientation or gender identity.
  • States shall take all necessary legislative, administrative and other measures to ensure a favourable environment for activities directed towards the promotion, protection and realisation of human rights, including rights relevant to sexual orientation and gender identity,
  • States shall combat actions or campaigns targeting human rights defenders working on issues of sexual orientation and gender identity, as well as those targeting human rights defenders of diverse sexual orientations and gender identities, ensure the protection of human rights defenders, working on issues of sexual orientation and gender identity, against any violence, threat, retaliation, de facto or de jure discrimination, pressure, or any other arbitrary action perpetrated by the State, or by non-State actors, in response to their human rights activities,
  • States shall support the recognition and accreditation of organisations that promote and protect the human rights of persons of diverse sexual orientations and gender identities at the national and international levels.
    (YPs, Principle 27)