The Yogyakarta Principles on Sexual Orientation and Gender Identity: Six Conceptual Advances enabled by the Principles

By Arvind Narrain  [1]

This year we mark the 10th anniversary of the Yogyakarta Principles. What does it mean to remember a date? At one level, we are marking a day on which 28 experts sat in a room in the city of Yogyakarta and came out with a legal document comprising 28 principles. Some of those experts, Sonia Correa, Prof Vitit Muntharborn, Sunil Pant and Mauro Cabral are here today. I pay a heartfelt tribute to them for the really amazing work they have done on the Yogyakarta Principles.

However, I think we are marking something more as well. We are remembering forms of injustice that are experienced by LGBTI persons around the world.

The preamble of the Yogyakarta Principles (YP) eloquently reminds us as to what these forms of injustice are. The preamble references, interalia, ‘extra-judicial killings, torture and ill-treatment, sexual assault and rape, invasions of privacy, arbitrary detention, denial of employment and education opportunities…’

Each of these words be it torture or sexual assault, embody a history of pain, humiliation and second class citizenship which is all too common in all parts of the world as far as LBGTI communities are concerned.

The act of remembrance of the YP is act of remembrance of unthinkable violence inflicted on LGBTI persons around the world; it is also a call to action. The remembrance of the past is also at its heart a call to the future, saying that such violence must become a thing of the past.

So, I think we are gathered here to remember the YP in both senses as a reminder of the conditions to which they responded as well as a call to action. How then do we evaluate what the YP’s have achieved?

I would like to talk about six key contributions of the Yogyakarta Principles to the struggle for dignity of LGBTI people worldwide.

Emphasizing the universality of rights

The philosophy underlying the Yogyakarta Principles is to be found in Principle 1 of the Yogyakarta Principles

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.

Article 1 of the Universal Declaration of Human Rights (UDHR) states:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

The preamble makes clear what the origin of this principle is. i.e. ‘disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind’. The reference is to the horrors of the II World War and in particular the Nazi Holocaust. As one of the delegates who participated in the drafting of the UDHR, Mr. Malik from Lebanon put it, the document ‘was inspired by opposition to the barbarous doctrines of Nazism and fascism’. [2]

Article 1 should be seen as a counterpoint to the Nazi doctrine under which the individual was subsumed in the collective body and had no independent existence. Further, under the Nazis, whatever rights individual were bestowed depended not upon the individual’s humanity but rather upon the race or religion of the individual. Article 1 is in every sense a repudiation of the idea that rights flow to a person based on any other category other than him being a human being.

Article 1 of the UDHR is a poignant reminder of a history where Nazi’s persecuted, tortured and killed Jews, Romas, the Slavs, disabled and the homosexuals.

When we remember why Article 1 of the UDHR came into place, the forgotten victims are often the homosexuals. In the development of international law subsequently, there is no reminder that this community suffered persecution. In fact the old Nazi law, paragraph 175 which criminalized homosexual sex continued to exist in some form until 1969 in the then Federal Republic of Germany, pointing to the stubborn persistence of this prejudice.

Today this principle of universality still continues to be denied in countries around the world, where persecuting persons on grounds of sexual orientation or gender identity is still not seen as a violation of the principle of universality embodied in Article 1 of the UDHR.

It is the principle of universality which is denied by the fact that over 76 countries still criminalize same sex intimacy, the fact that expression of one’s gender identity can expose you to brutal violence with impunity and the fact that in many countries around the world LGBTI persons are forced into second class citizenship.

The struggle to establish that LGBTI person are human being, entitled to equal moral consideration is a continuing battle.

As such principle one is the anchor of the YP and makes the simple yet important claim that LGBTI persons are human beings and hence entitled to all rights to which human beings are entitled to under international human rights law.

Sexual orientation and gender identity as coequal markers of discrimination: 

In 1992, in Toonen v Australia, the Human Rights Committee found that the anti sodomy law of Tasmania was violative of provisions of the International Covenant on Civil and Political Rights. (ICCPR) The Committee found that Tasmania’s sodomy law violates the right to privacy in the International Covenant on Civil and Political Rights. The Committee also explicitly observed that ‘the reference to “sex” in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation.’ This brief finding, (without any further explanation) in effect read the reference to sex in the equality (Article 2) and non-discrimination clauses (Article 26) of the ICCPR as inclusive of ‘sexual orientation’.

While the concept of sexual orientation was first articulated in international law in 1992, it took longer for the concept of gender identity to be recognized. In fact, as late as 2003 when Brazil proposed a resolution at the then Commission on Human Rights on ‘Human rights and sexual orientation’, the resolution ‘expressed deep concern at the occurrence of violations of human rights in the world against persons on the grounds of their sexual orientation’ (Italics added). Gender identity was wholly absent from the framework of international human rights law.

The breakthrough in terms of introducing the notion of gender identity had to wait until the release of the ‘Yogyakarta Principles on the application of international human rights law to sexual orientation and gender identity’ in 2007. The Yogyakarta Principles sought to distill the current state of international law as it now applied to persons discriminated on grounds of sexual orientation and gender identity in the form of twenty nine principles traversing a range of rights including civil, political, social, cultural and economic rights. The principles for the first time in international law defined both the terms ‘sexual orientation’ and ‘gender identity’ thereby enunciating how one’s rights could be violated on the above-mentioned grounds.

This breakthrough in the Yogyakarta Principles of introducing the notion of gender identity for the first time in international law has a lot to do with the fact that the issue of gender identity was persistently articulated as a key concern by LGBT activists from the global south. It was their persistence, which ensured that the Yogyakarta Principles made a leap (in international law terms) and introduced the notion of gender identity.

What followed in the wake of this conjoining of the notions of sexual orientation and gender identity in international law was the historic 2011 resolution sponsored by South Africa which ‘requested the United Nations High Commissioner for Human Rights to commission a study, to be finalized by December 2011, documenting discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity’. (Italics added)

By now the conceptual linkages between ‘sexual orientation’ and ‘gender identity’ was well established and the follow up resolution in the Human Rights Council in 2014 also ‘called upon the Office of the High Commissioner to update the previous report of the High Commissioner on sexual orientation and gender identity’. (Italics added)

Each of the salient landmarks in the development of the concept of SOGI in international law has behind it a history of struggle. The fact that these concepts are now a part of international law is the result of years of struggle by LGBT activists who sought to visibilize the violence and discrimination inflicted upon a seemingly amorphous group of people on grounds of their sexual orientation and gender identity.

Providing a conceptual understanding of the term sexual orientation and gender identity

To understand the breadth of what the terms sexual orientation and gender identity could encompass it would be useful to go back to the definitions of the two terms embodied in the Yogyakarta Principles:

‘Sexual orientation’ refers ‘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’ 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 Yogyakarta Principles filled a crucial gap as even though international law used these concepts it never defined them. For example, Toonen used the term ‘sexual orientation’ without quite clarifying what it meant. The fact that the Yogyakarta Principles defined these terms was eagerly seized upon by jurisdictions around the world.

How does one evaluate the concepts of sexual orientation and gender identity in this light? What is the range of identities, acts, behaviours which should be protected by law from violence and discrimination and where do these concepts fall short?

With respect to sexual orientation the debate within the community has been whether the protection of identities ends up excluding those who do not identify as gay or lesbian, but may engage in sexual acts with those of the same sex. What activists have rightly identified is that an exclusive focus on identities will negate the fact that in large parts of the world people may not identify as gay or lesbian, but are subjected to violence and discrimination on grounds of the sexual acts which they perform. The question is whether the concept of sexual orientation as defined by the Yogyakarta Principles is broad enough to encompass both acts and identities?

A close reading of the definition of sexual orientation indicates that it encompasses two notions:

-Each person’s capacity for profound emotional, affectional and sexual attraction between people of the same gender, different gender or more than one gender.

-Forming of sexual and intimate relations between people of the same gender, different gender or more than one gender.

The first notion hints at a realm which is not in that of actions but of feelings, emotions and attractions. This aspect of the definition by pointing to the ‘profound capacity for emotional, affectional and sexual attraction’ hints at the psychological aspect of sexual orientation. While the word profound is read with ‘sexual, emotional and affectional’ it communicates a dimension which is linked to the sexual but also belongs to another domain in which sexual acts have deep meanings for those engaging in them. Thus sexual acts are not sexual acts alone but expressive of something more fundamental such as notions of identity and personhood.

The second notion brings sexual orientation back into the body as it were clearly pointing to ‘the forming of sexual and intimate relations between people’ as an aspect of sexual orientation. Within this notion, one is not necessarily talking of the aspect of identity and personhood but rather the formation of sexual and intimate relations between people as integral to sexual orientation Thus crucially one need not be gay or lesbian to come within the rubric of sexual orientation, one only needs to form sexual relations with those of the same sex, thereby opening out protection to those who fall outside the framework of identity.

Thus these two aspects of the definition point towards the diversity of the grouping which is affected by state and societal prejudice. It encompasses those for whom sexual attraction is part of their personhood and very identity and those who may not identify as gay or lesbian but whose sexual relations and sexual acts exposes them to societal ridicule and state discrimination. By phrasing the notion broadly, the concept provides protection to the diversity of acts and identities within the LGBT community.

Coming to the term ‘gender identity’, one of the dividing lines within the community is on the question of who is encompassed by the definition of transgender. One of the principle issues is whether protection is only for those who alter their bodies to bring it in line with their deeply felt gender or is it also for those who do not wish to alter their bodies but choose to express their gender through dress, comportment and mannerisms?

The definition of gender identity in the Yogyakarta principles is phrased broadly to encompass this diversity within the LGBT community. It can be read as including two groupings:

-Those who choose to go in for a ‘modification of bodily function or appearance by medical, surgical or other means’ to bring their body in alignment with their ‘deeply felt internal and individual sense of gender’;

-Those who choose to express their ‘deeply felt internal experience of gender’ not through bodily modification but through ‘dress, speech and mannerisms’.

The definitions of sexual orientation and gender identity in the Yogyakarta Principles carefully avoid the trap of protecting only established identities like gay, lesbian, bisexual or transgender and expressly broaden the protection to a wide range of people all of whom could be targeted for either their sexual behaviour, sexual acts, sexual identities, gender expression or gender identity.

The broad phrasing of the Yogyakarta definition does justice to this plurality of identities, bodies and expressions which are grouped under the terms ‘gender identity’ and ‘sexual orientation’. These two concepts are a broad tent under which diversity can shelter.

In Argentina, the historic Gender Identity law borrowed its definition of gender identity from the Yogyakarta Principles.[3] In India the Delhi High Court judgment in Naz Foundation v. NCR Delhi, reading down Section 377 of the Indian Penal Code as well as the Supreme Court judgment recognizing transgender rights in National Legal Services Authority v. Union of India (NALSA) both cited the Yogyakarta Principles.

Beyond the citational value it must be noted that the NALSA judgment implicitly drew upon the Yogyakarta language in defining the freedoms protected by the constitution. As the Court observed:

Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self-identified gender. Self-identified gender can be expressed through dress, words, action or behavior or any other form. No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution. [4]

The language the Court adopted in its crucial finding that the freedom of expression included the freedom to express self-identified gender through ‘dress, words, action or behavior’ echoes the Yogyakarta definition of gender identity which includes the right to express one’s gender through ‘dress, speech and mannerisms’.

The terms ‘sexual orientation’ and ‘gender identity’ have transitioned from international law back into domestic law opening out new ways of interpreting existing constitutional texts (India) and have also been incorporated into domestic statutes (Argentina). The language of sexual orientation and gender identity as defined in the Yogyakarta Principles could potentially open out many more domestic doors in the years to come.

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 right to recognition as a person before the law was included in the ICCPR with a view to slavery, serfdom, apartheid and the Nazi regime, which had denied certain persons their legal subjectivity. It guarantees that the individual is legally recognized as a person and that he is a bearer of rights and duties. [5]

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 recognize transgender people’s right to identify with the gender of their choice.

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 ‘man’s home is his castle’ (i.e. the untrammeled 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’.

This flows form jurisprudence in both South Africa, India and the USA.

Justice Albie Sachs in is forceful concurring opinion in National Coalition for Gay and Lesbian Equality v. Ministry of Justice [6] notes:

There is no good reason why the concept of privacy should, as was suggested, be restricted simply to sealing off from state control what happens in the bedroom, with the doleful sub-text that you may behave as bizarrely or shamefully as you like, on the understanding that you do so in private.130. (Para 116)

In Justice Asch’s understanding:

While recognising the unique worth of each person, the Constitution does not presuppose that a holder of rights is as an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times. The expression of sexuality requires a partner, real or imagined. It is not for the state to choose or to arrange the choice of partner, but for the partners to choose themselves. [7]

In a series of case the US Supreme Court developed the notion that the right to privacy includes the right to make decisions on abortion, the right to make decisions on the use of contraceptives and other areas of intimate life.

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.

The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State.  The exercise of autonomy enables an individual to attain fulfillment, grow in self-esteem, build relationships of his or her choice and fulfill all legitimate goals that he or she may set.  In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21.  Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution. (48)

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.

Medical abuse has three aspects when a person based on his or her SOGI is forced to undergo

  • Medical or psychological treatment, procedure, testing,
  • Confinement to a medical facility,
  • Classifications of Sexual orientation and gender identity are not in and of themselves, medical conditions to be treated, cured or suppressed.

It should be noted that the question of medical abuse is not expressly addressed by international treaty based law be it the UDHR, ICCCPR or ICESR or any of the specific treaties which have followed it. Arguably the role of the medical profession has been regulated more by the category of medical ethic and voluntary codes of conduct than any hard law.

The jurisprudential sources of Principle 18 are the following:

Article 7 states

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

The annotations refer to General Comment No.20 para 7 which elucidates the point on medical experimentation

Article 7 expressly prohibits medical or scientific experimentation without the free consent of the person concerned. The Committee notes that the reports of States parties generally contain little information on this point. More attention should be given to the need and means to ensure observance of this provision. The Committee also observes that special protection in regard to such experiments is necessary in the case of persons not capable of giving valid consent, and in particular those under any form of detention or imprisonment. Such persons should not be subjected to any medical or scientific experimentation that may be detrimental to their health. [8]

This protection from medical experimentation again flows from having to respond to the role of doctors in the Nazi holocaust. Led by Dr. Karl Brandt, Hitler’s personal physician, doctors performed a range of experiments on prisoners including inter alia, freezing experiments, malaria experiments, sulphanilamide experiments, transplantation experiments, typhus experiments, radiation experiments, and poison experiments. The subjects of these experiments often were prisoners of concentration camps, who neither benefited from such treatments nor gave voluntary consent to them. Physicians conducted these experiments with the expectation, often morbidly correct, that their subjects would die. [9]

The other source which the annotations to the YP identify is U.N. General Assembly, Report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment. [10]

“In a number of countries, members of sexual minorities are said to have been involuntarily confined to state medical institutions, where they were allegedly subjected to forced treatment on grounds of their sexual orientation or gender identity, including electric shock therapy and other “aversion therapy”, reportedly causing psychological and physical harm. […] The Special Rapporteur has received information according to which, in a number of countries, persons suspected of homosexuality have been subjected to compulsory, intrusive and degrading medical examinations of anus and penis in order to determine whether penetration had taken place, inter alia, within the context of enlistment for military service.”

There is also a reference to a paper by Mauro Isaac Cabral,

“Gender identities differing from that assigned at birth, or socially rejected gender expressions, have been treated as forms of mental illness. The pathologization of difference has led to gender-transgressive children and adolescents being confined in psychiatric institutions, and subjected to aversion techniques -including electroshock therapy- as a “cure”.” [11]

Finally, the Annotations refer to the question of medical classifications:

In 1973, the American Psychiatric Association removed homosexuality from the Diagnostic and Statistical Manual of Mental Disorders (DSM). In 1992, the World Health Organization removed homosexuality from the International Classification of Diseases and Related Health Problems (ICD-10) [12]

What we see in principle18 is an expansion of the prohibition of ‘medical experimentation’ in Article 7 of the ICCPR to the category of ‘protection from medical abuses’. Medical abuses are broader than medical experimentation and includes when a person is forced to undergo

  • Medical or psychological treatment, procedure, testing,
  • Confinement to a medical facility,
  • Classifications of Sexual orientation and gender identity as medical conditions to be treated, cured or suppressed.

This jurisprudential development of looking beyond medical experimentation to include these three forms of ‘medical abuse’ is a vital expansion of the protections to persons on grounds of SOGI. What principle 18 in particular understands is that the control and regulation of SOGI happens through multiple social institutions. While the law and state are clearly one oppressive force, so too is the medical establishment.

It’s imperative that principle 18 be read with principle 28 (the right to effective remedies) as we move from a normative revolution (recognition of medical abuse) to an implementation revolution (reparation and redress of the harm which has been inflicted on grounds of sexual orientation, gender identity and sex characteristics)

Looking ahead

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 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.

[1] Presentation at the APF-UNDP Conference on the Yogyakarta Principles: What have we learnt and where to now? 25-26 April 2017, Bangkok, Thailand. This presentation draws upon previous work including Sexual Orientation and Gender Identity: A Necessary Conceptual Framework for Advancing Rights?, The Yogyakarta Principles on Sexual Orientation and Gender Identity: Marking ten years of SOGI jurisprudence.

[2] Johannes Morsink, World War II and the Universal Declaration of Human Rights, cf.  David Weissbrodt, Fionuala D Ni Aolain, Mary Rumsey, The development of international human rights law, Vol I, Ashgate, Burlington, 2014. P. 89.

[3] Article 2 of the Gender identity law states that gender identity ‘is understood as the internal and individual way in which gender is perceived by persons, that can correspond or not to the gender assigned at birth, including the personal experience of the body. This can involve modifying bodily appearance or functions through pharmacological, surgical or other means, provided it is freely chosen. It also includes other expressions of gender such as dress, ways of speaking and gestures.’

[4] http://supremecourtofindia.nic.in/outtoday/wc40012.pdf

[5] Lisa Ott, Enforced Disappearances in International law,

[6] http://www.saflii.org/za/cases/ZACC/1998/15.pdf

[7] Ibid.

[8] U.N. Doc. CCPR General Comment No. 20, 10 March 1992, para. 7.

[9] Johannes Morsink, World War II and the Universal Declaration of Human Rights, cf. David Weissbrodt, Fionuala D Ni Aolain, Mary Rumsey, The development of international human rights law, Vol I,  Ashgate, Burlington, 2014. P. 89.

[10] U.N. Doc. A/56/156, 3 July 2001 (‘Torture and discrimination against sexual minorities’, paras. 17-25), para. 24:

[11] Omitir la sangre  (paper delivered at expert workshop, Yogyakarta, Indonesia,

November 2006), p. 7:

[12] See Jurisprudential Annotations to the Yogyakarta Principles, http://www.sxpolitics.org/wp-content/uploads/2009/05/yogyakarta-principles-jurisprudential-annotations.pdf