New rights for LGBTIQ people?

On November 27, 2017, the first expansion of the historic Yogyakarta Principles since their inception in 2006 was presented to the world. This 2017 edition (known as YP+10) builds on the authoritative interpretation of human rights legal practice of ten years earlier that clearly lays out State obligations under international law. The YP+10 document contains nine new Principles and 111 new recommendations mostly focused on the rights of trans and intersex people. The original Principles (2007) had been finalised at an expert meeting of human rights scholars and activists in Yogyakarta, Indonesia, and the YP+10 process took place in Geneva in 2017.


Anniversary

In December 2016, during the ILGA World Conference I attended in Bangkok, a 10-year celebratory event of the Principles’ existence was held. Three (of 29) of the original (2007) signatories were present: Mauro Cabral Grinspan (executive director at GATE) and prof. Vitit Muntarbhorn, the then UN Independent Expert on Sexual Orientation and Gender Identity (UNIESOGI). Co-signer Maina Kiai (UN Special Rapporteur on the Freedom of Opinion and Expression, UNSRFOE, until April 2017) was also present. The occasion was used to announce that a necessary update to the Principles was to commence in 2017. Undoubtedly, the global significance of the Principles as a soft law document in UN and regional forums, national courts, individual governments and in academia is undisputable – they are widely referenced.
It is said that the creation of the 2006 Yogyakarta Principles was largely a white Western cis person led process (around 60% of the Committee was white and Western, and 7% non-cis). Only two non-cis persons participated: Stephen Whittle, the man behind the then revolutionary UK Gender Recognition Act 2004, and Mauro Cabral Grinspan. This cis/non-cis representation balance had clear consequences in both the processes of textual construction, and in the resultant Principles; trans and intersex related provisions and interpretations were underrepresented. Many people feel that the 2007 Principles were largely drawn up with sexual orientation featuring most in mind. Fortunately YP+10 corrects this omission and re-balances the emphasis.
The original and the revised Yogyakarta Principles centre on the status of individuals rather than on their identity – therefore, for example, there is no mention of trans or bisexual identities. The Yogyakarta Principles refer to legally binding international human right laws that are already encoded in UN Treaties and to which countries have signed up. The Principles indicate what governments need to do (or not do) to meet their existing obligations “irrespective of sexual orientation, gender identity and expression or sex characteristics” (these words are at the end of each Principle). As human rights are universal, it is imprecise to conceive these Principles as defining ‘gay rights’ or ‘trans rights’ – or ‘new rights’ – they are simply showing how universal human rights already apply to us.

United Nations

If you have kept an eye on developments in the UN as an LGBTI+ human rights activist or as a professional, you will have observed that at least since the beginning of the 21st century human rights for gays and lesbians became an issue at the UN. Though at the same time they have been heavily contested, such as during the appointment of the Independent Expert for SOGI rights. Resistance went (uniquely!) up to the highest levels. Sexuality and gender clearly make some stakeholders fume with rage. However, during the recent replacement of prof. Muntarbhorn attempts to protest have been curtailed
Within the UN more and more work is being done to make human rights more LGBTI+ inclusive, but that is not where the focus of the Yogyakarta Principles lies. Because states in general have ratified several human rights treaties, such as the Convention on the Rights of the Child (CRC), the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), Covenant on Economic, Social and Cultural Rights (CESCR), Covenant on Civil and Political Rights (CCPR), Convention on the Rights of Persons with Disabilities (CRPD). They all impose – voluntarily entered – obligations on states. But because these treaties are formulated so that they don’t take sexuality or gender into account, the Principles were needed. They mostly provide guidance to activists and to states, on how to implement existing human rights legislation and jurisprudence for everyone, thus inclusive of LBGTI persons.

From 2006 …

The original edition covers a multiple of human rights issues: 29 in total. These find sources in a number of Treaty Bodies and include the right to human rights, through to the right to life and recognition, the rights of freedom of expression, assembly, association, family life, the highest attainable standard of health and the prevention of medical abuse. And last, but not least, the right to reparations and redress. That essential right—the right to life without which all others fall away – appears as Principle 4. This Principle is about not tolerating killing or capital punishment for people on the ground of their SOGI status. This plays strongly in Indonesia or Chechnya e.g.. From here it is a smooth move to Principle 7: arbitrary deprivation of liberty because of SOGI status.
The name of Dutch trans health rights collective Principle 17 finds its source in the Yogyakarta Principles. Principle 17 is about the right to the highest attainable standard of health. The Principle contains nine obligations for duty bearers, and the new 2017 edition adds ten more. These explicitly include accessible, publicly funded, trans specific health care (TSHC), the right to PEP and PrEP relating to HIV, and the right to abortion. Principle 18 – protection from medical abuses— has not changed.Added to that is an additional Principle 32, the right to physical and mental integrity: “No one shall be subjected to invasive or irreversible medical procedures that modify sex characteristics without their free, prior and informed consent, unless necessary to avoid serious, urgent and irreparable harm to the concerned person.”
Principle 3, the right to recognition before the law has been amended with the new Principle 31, the right to legal recognition, and is trans specific and also intersex related: “obtain identity documents, including birth certificates, regardless of sexual orientation, gender identity, gender expression or sex characteristics.” This is more comprehensive than only certain forms of state documentation (like ID papers). Principle 31 states “everyone has the right to change gendered information in such documents while gendered information is included in them.” Also a real choice must be there, thus “Make available a multiplicity of gender marker options”: the Principles accept no limitations. Irrespective of whether you are old or young, mad or sick, criminalised, you have the right to the correct gender marker. And all this through a procedure which, as coined by TGEU, must be “quick, accessible and transparent”.

… to 2017

The new Principles are a deepening and completion of what was published in 2007.
There is a new principle (#30) on state protection. Every persecuted person has the right to state protection from violence, discrimination and other harm, irrespective of SOGIESC status. Whether it is State or non-State actors that persecute, the state has the obligation to protect people who are persecuted because of an unwelcome sexual orientation (homo- or bisexual, polyamorous) or gender identity (not recognised identities like queer, fag, butch, transgender) or sex characteristics (intersex related, because of how someone’s sexuation leads to severe medicalisation because of superfluous and grievous medical intervention).
Also there is Principle 35 The Right to Sanitation that confers responsiblities in many settings: at school, on the job (private or public), or in prison. And of great importance is the second-last principle: the Right to Truth. As the victim of a human rights violation one has the right to know precisely how and why this happened. Therefore one has the right to redress and reparation and support in rebuilding one’s life (like after having been imprisoned as a transperson in Turkey; or when maimed by lack of protection from violence).
It should be clear that the Yogyakarta Principles are important for the issues of sexual orientation gender identity and expression, and sex characteristics. Thus for everyone (including agender and asexuality here in the definitions), irrespective of being gay, lesbian or bisexual, trans or intersex. That is how the universality of human rights works.

Application

But how to use the Principles? How do they achieve more impact, and get more influence while being soft law instruments or guidance for States? First of all by always using them in your advocacy efforts with the state. The Dutch government e.g. has recognised the Principles as a human rights tool but at the same time needs to be held to that. In the considerations on changing the law on gender recognition they played an important role. So integrate them in your work. And don’t worry about being selective. With Principle 17 (right to health) I only focus on one field (albeit in conjunction with Principle 18, protection from medical abuses). It’s useful to note that some Principles are not of much use to us (trans/intersex activists).
Use them strategically. When convincing a public transport company to use gender inclusive language the Principles may not be useful, though when talking with local government on transgender and joblessness, it may be extremely useful to employ them, and tell where their wisdom comes from. how various issues are connected and intersect. They abundantly illustrate the universality, indivisibility and interdependence of all human rights.

Perspective

From a human rights perspective, we have great tools to get gender recognition and tailored health care by using Principle 3 combined with Principle 31, and Principles 17 with Principle 18. And as every professional knows, you don’t use only one tool from your toolbox. And if you don’t work with rights at all, it is still essential to know you have them, and to know your rights have just been sharpened.

 


This text is a translation of a Dutch original, published on December 11, 2017 on https://www.transgenderinfo.nl/nieuwe-mensenrechten-lhbtiq-mensen/

I am grateful for the editing assistance for this article by Aengus Carroll and Nathan Gale. Thanks a lot, gentlebeings!

Nooit vroeg genoeg

Ik hoor en lees van veel mensen dat je genderideeën maar heel langzaam verandert, want een geschiedenis van duizenden jaren sla je niet als een bladzijde om. Dat heb ik nooit zomaar geloofd en nu geloof ik het echt niet meer. Sterker, ik ben meer en meer overtuigd, dat je niet vroeg genoeg kunt beginnen met het duidelijk maken dat er meer is. Continue reading

Webinar trans health and human rights

On Wednesday 19 August I will hold a webinar on trans* health and human rights. Planned time is 4 PM Central European Time.

The seminar is inspired by the twitter feed of #Transhealthfail (https://twitter.com/hashtag/transhealthfail), telling of worldwide dissatisfaction and abuse in the medical world – well known issues which need addressing in a more structured and organised way. Many states require medical procedures before legal gender recognition. That violates our rights, dignity and existence. Continue reading

Sex and gender domino

April 2015 is for trans* and intersex human rights in Europe a rather fortunate month. On the legal level that is. It still rains trans murders and suicides, not to speak of other atrocities. Which – cynically maybe – show precisely what we need that legislation for.

I want  your attention for two cities in two countries for two different important advances. The first town is Valletta, on Malta. The other is Geneva in Switzerland. And then for two more where no less important stones fell in Oslo, Norway and Strasbourg, France. Continue reading

World Health Day 2015

The United Nations have labelled April 7 World Health Day. A day to pay explicit attention to health issues. Since our focus is trans* and inter*, or differently (and more universally) put: gender identity, gender expression and sex characteristics, this is what we will look into.

Luxury

For transgender persons, or trans* people, or gender variant/diverse people, having a good health is often a luxury they cannot afford. Because they are not recognized as a group in need of specific health care (or even health care at). In many parts of the world including enlightened Europe, wishing to adapt your body’s sex characteristics is a frowned upon phenomenon. Both the general public and the medical sector may despise you for your needs.

World Health DayInsurance

The next issue is getting the health care covered by insurance. Of the countries that provide health care to relieve the plight of trans* people, most cover maybe the ‘basics’ and then still often on extraneous conditions. These so-called basics are not by definition what the trans* person asks. Because being trans* does not only concern those people who need to ‘switch’ genders for their well-being, but every trans* person who is in need of any health care to increase their well-being with their gendered and sexed body. Some people may need hormone replacement therapy because their natal sex hormones don’t agree with them. Some need to only get rid of (the largest part of) their breasts. And given the choice, the percentage of trans* women that insists in getting rid of their original genitals is not that high. In the Netherlands only 12% of the whole trans* population (estimated at 2 to 3% of the population) decides for medical assistance. Communication from Spain indicates a similar percentage.

Fate

In most countries doctors don’t agree with prescribing hormones or doing surgery upon a patient unless a psychologist has done a thorough assessment of the care user’s mental health and observes the presence of “Gender Identity Disorder” or “Gender Dysphoria”. That process of establishing the diagnosis can easily aggravate the presupposed dysphoria (a word that actually refers to severe depression, and by virtue of that is not a good term). When left to the discretion of a prejudiced medical profession, that has no good understanding of sexual orientation and gender identity (and expression) phenomena, they will try to explain things away, but not legitimize the existence of gender diversity. The higher the level of morals conservatism, the higher the chance trans* people will meet this fate and only can progress medically assisted gender transition with a diagnosis of severe mental disorder.

Standards

Also in the progressive Netherlands you cannot easily enter medically assistance with gender transition. Where the Standards of Care for transgender health care states that informed consent is the way to go, the Amsterdam gender team still insists in a lengthy psychological evaluation and in case you may encounter practical trouble (intensifying ‘dysphoria’, growing life problems for non conforming ..) they may prolong evaluation or when already on HRT, suggest you to lower the dosage. As if that were the issue. Doing so leads to iatrogenic increase of mental instability. Which in turn leads to a decrease of the patient’s health.

Assessment

Another issue that weirdly is coupled to a trans* person’s health, is Legal Gender Recognition and the preconditions for that. In Europe 33 countries require psychological or medical interventions before recognizing a trans* person’s wish to change their gender assignment; 19 still require sterilization and genital realignment. Only two states in the world give the possibility to change one’s gender assignment with no strings attached: Argentina, and Malta. Denmark comes next, but still requires a half-year wait (and being over 18 y.o.). Everywhere else, where there are regulations, psychological assessment is the least invasive requirement, also in the Netherlands. Only two to three countries take trans* people seriously. And only one of these has provisions for a non-male/non-female reassignment.

Malta

Laws and regulations can have an important effect on trans and inter* persons’ well-being. They regulate the conditions for legal gender change, for medical assistance: which interventions are available at all, which ones are insurance funded? For intersex (or inter*, because it can also be an identity and those more ‘intergender’ and the asterisk in both inter* and trans* indicates a vastness in possibilities). Only one state in the whole world, one state out of more than 192 states, prohibits explicitly that sex characteristics get adapted to a social ideal of having genitals clearly distinguishable as male or female. Everywhere but in Malta this is still legal, and standing practice.

Human Rights Also for Intersex PeopleProgress

Engaging in these usually non-consensual surgeries is a gross violation of a person’s dignity and personal autonomy. Intersex genital mutilations – usually performed on minors – equals forced sterilisation of women for belonging to the wrong ethnic group (forbidden by the European Human Rights Court en the UN!). When asked a paediatrician they sometimes agree that in the past many errors have been made, but nowadays medical science is so much better that the results are incomparable with the sorry state of technique and results of twenty-five years ago. By using that argument they still deny people their right to bodily autonomy, to decide for themselves about their body. They preclude being OK with those genitals (or gonads or chromosomes), with their body and their life.

Power

The health of a person considered physically or mentally deviant is the explicit object of power play, of medical, psychiatric and legal paternalistic laws and practices. That goes against the most basic rights and that alone already is pretty bad for one’s health.