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!