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