Identity and International
Human Rights Law:
Contextualising theYogyakarta
Principles
Michael O’Flaherty* and John Fisher**
Abstract
On 26 March 2007, a group of human rights experts launched the
Yogyakarta Principles on the Application of Human Rights Law in
Relation to Sexual Orientation and Gender Identity (the Yogyakarta
Principles). The Principles are intended as a coherent and comprehensive
identification of the obligation of States to respect, protect and
fulfil the human rights of all persons regardless of their sexual orientation
or gender identity. Since their launch the Principles have attracted
considerable attention on the part of States, United Nations actors and
civil society. It is likely that they will play a significant role within
advocacy efforts and, whether directly or otherwise, in normative and
jurisprudential development. The present article constitutes the first
published critical commentary on the Principles. It seeks to situate
them within the contexts of (a) the actual situation of people of diverse
sexual orientations and gender identities, and (b) the applicable
international human rights law as it stands today. Thus situated, the
Yogyakarta drafting process and the outcome text are examined.
The final section of the article comprises a preliminary review of the
impact and dissemination of the Principles.
1. Introduction
Worldwide, people are subject to persistent human rights violations because of
their actual or perceived sexual orientation and gender identity. These human
rights violations take many forms, from denials of the rights to life, freedom
from torture, and security of the person, to discrimination in accessing economic,
social and cultural rights such as health, housing, education and the
right to work, from non-recognition of personal and family relationships to pervasive
interferences with personal dignity, suppression of diverse sexual identities,
attempts to impose heterosexual norms, and pressure to remain silent
and invisible.
At least seven countries maintain the death penalty for consensual samesex
practices,1 and numerous reports have do***ented persons killed or
sentenced to death because of their sexual orientation or gender identity,2
including a gay man sprayed with gasoline and set on fire in Belgium, the
murder of a transgender human rights defender in Argentina, a nail bomb
explosion in a gay bar in the United Kingdom, killing three people and injuring
dozens of others, the murder of a gay rights activist by multiple knife wounds
in Jamaica, prompting a crowd to gather outside his home, laughing and calling
out ‘let’s get them one at a time’, and the recent execution-style murder of
two lesbian human rights defenders in South Africa. Often killings based on
sexual orientation or gender identity are perpetrated ‘by agents of the State,
and their murders go unpunished. Indeed no prosecution is ever brought’.3
In a recent report,4 Amnesty International do***ents serious patterns of
police misconduct directed against individuals in the United States because of
their sexual orientation or gender identity, including profiling of such individuals
as criminal, selective enforcement of laws, sexual, physical and verbal
abuse, failure to respond or inadequate responses by the police to hate crimes
and violence, as well as to situations of domestic violence that involve samesex
partners, inappropriate searches and mistreatment in detention and a lack
of accountability for perpetrators.
Those who transgress gender norms are particularly likely to be targeted for
violence. The organisation ‘Transgender Day of Remembrance’ estimates that
one transgender person is killed every month in the US.5 In Nepal, me¤tis
(people born as men who identify as women) have been beaten by police
with batons, gun butts and sticks, burnt with cigarettes and forced to perform
oral sex.6
Transgender people are ‘often subjected to violence . . . in order to ‘‘punish’’
them for transgressing gender barriers or for challenging predominant conceptions
of gender roles’,7 and transgender youth have been described
as ‘among the most vulnerable and marginalized young people in society’.8
As one Canadian report underlines:
The notion that there are two and only two genders is one of the most
basic ideas in our binary Western way of thinking. Transgender people
challenge our very understanding of the world. And we make them pay
the cost of our confusion by their suffering
2. Review of Law and Jurisprudence
There is a growing jurisprudence and other law-related practice that identifies
a significant application of human rights law with regard to people of diverse
sexual orientations and gender identities. This phenomenon can be observed
at the international level, principally in the form of practice related to the
United Nations-sponsored human rights treaties, as well as under the
European Convention on Human Rights. The development of this sexual orientation
and gender identity-related human rights legal doctrine can be categorised
as follows: (a) non-discrimination, (b) protection of privacy rights and,
(c) the ensuring of other general human rights protection to all, regardless of
sexual orientation of gender identity. In addition, it is useful to examine (d)
some general trends in human rights law that have important implications
for the enjoyment of human rights by people of diverse sexual orientations
and gender identities.
http://www.yogyakartaprinciples.org/yogyakarta-article-human-rights-law-review.pdf