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An Activist’s Guide to The

The Application of International Human Law in Relation to and Identity

An Activist’s Guide to The Yogyakarta Principles Section 1 Overview and Context

In 2006, in response to well- documented patterns of , a distinguished group of international experts met in Yogyakarta, to outline a set of international principles relating to sexual orientation Yogyakarta, and . Indonesia

The result is the Yogyakarta Principles: a universal guide to human rights which affirm binding international legal standards with which all States must comply.

They promise a different future where all people born free and equal in and rights can fulfil that precious birthright.

2 An Activist’s Guide to The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity In November 2006, we were honored to This Activist’s Guide is a tool for those Foreword serve as co-chairs of a four-day meeting who are working to create change and at in Yogyakarta, build on the momentum that has already Indonesia. That meeting culminated a begun around the Yogyakarta Principles. We all have the same human rights. drafting process among twenty-nine In local neighborhoods and international our sexual orientation, gender international human rights experts organisations, activists of all sexual who identified the existing state of orientations and gender identities are a identity, nationality, place of residence, , international human rights law in relation vital part of the international human rights to issues of sexual orientation and , serving as monitors, educators, national or ethnic origin, colour, religion, identity. The Yogyakarta Principles on the mobilisers, and leaders. This guide is an Application of International Human Rights acknowledgment that individual activists language, or any status, we are all Law in Relation to Sexual Orientation deserve support and recognition for their and Gender Identity are meant to be a contribution to the realisation of rights for equally entitled to our human rights without coherent and comprehensive articulation all of us. of the obligations of states and non-state . These rights–interrelated, actors to respect, protect, and fulfill the Sonia Onufer Corrêa human rights of all persons regardless of interdependent, and universal–are shared sexual orientation and gender identity. by each one of us. August, 2010 There is an inconsistency between the rights identified in international human rights documents, such as those in the Yogyakarta Principles, and the rights actually enjoyed by individuals. While international standards may grant us rights, discrimination, stigma, violence, and fear pose real threats to people of diverse sexual orientations and gender identities. Activists, human rights defenders, and individual members of our many communities are the driving force behind closing this gap between our rights and our reality.

6 7 Thanks are due to the staff of ARC • United Belize Advocacy Movement Acknowledgements International and the International (UNIBAM), Belize Commission of Jurists (ICJ), as well as the • Brazilian Association of , Gays, following group of generous activists: Bisexuals, Travestis and As with the Principles themselves, this Guide (ABGLT), was a joint effort by dozens of activists who • Adrian Coman, International and • Organization for Dignity in Diversity (Chile) provided advice, editorial review, and expertise (IGLHRC) • Aizhi Action Project and Chinese • Justus Eisfeld, Global Advocates for Society for the Study of Sexual throughout the entire process, from conception Trans Equality (GATE) Minorities (CSSM), China • Stefano Fabeni, Global Rights • Alliance to Respect LGBT Citizenship, to production. For many of these activists, • , Colombia • Sara Perle, International Gay and • Sasod, Guyana the time spent creating this Guide was Lesbian Human Rights Commission • Naz Foundation and Voices Against (IGLHRC) 377, outside of their usual duties. • Cynthia Rothschild, Center for • Sangama, India Women’s Global Leadership • Meem, • Renato Sabbadini, International • (BDS), Sheila Quinn (Ireland), Researcher and Lesbian, Gay, Bisexual, Trans and • Netwerk Nederland Consultant, wrote the final draft of this Guide Association (ILGA) (TNN), The Netherlands and served as project manager for the final • Kate Sheill, • Human Rights editing process and the Guide’s production. • Katrine Thomasen, International Commission, New Zealand Service for Human Rights (ISHR) • Campaign Against (KPH), More broadly, the organisations • 07-07-07 Campaign, South supporting the individuals above played • Swedish International Development key roles in facilitating information, Co-Operation Agency (Sida), meetings, and resources for this Guide, • Unión Afirmativa de Venezuela, and thanks therefore goes to their various Venezuela networks of staff and volunteers. These groups are among the growing field of Alejandra Sarda-Chandiramani and Arvind non-governmental organisations taking Narrain served as consultants to the up the issue of international advocacy for project. Andrew Park (Program Director) LGBTI people. and Addison Smith (Program Coordinator) at Wellspring Advisors also participated The case studies were written with direct in the preparation and production of the input from the organisations that are the final draft. Sheila Quinn was very ably subjects of the case studies. They are due assisted by Laura Shehan. recognition not only for their contribution to the Guide but also for their tireless and Development and production of this inspiring activism: guide was made possible by generous DREILINDEN support from Dreilinden Gesellschaft für Gesellschaft für gemeinnütziges Privatkapital mbH gemeinnütziges Privatkapital, . 8 9 The Structure 4. Applying the Yogyakarta Principles Gender identity is understood to refer Purpose and suggests strategies for further to each person’s deeply felt internal There are four sections to the Guide engagement with the Principles. The and individual experience of gender, Structure intention is to stimulate ideas rather which may or may not correspond with 1. The Yogyakarta Principles – Overview than be directive. The idea is to the sex assigned at birth, including the of this Guide and Context gives an overview of the explore how the Yogyakarta Principles personal sense of the body (which may Principles. It discusses why, how, when, can enhance the work of activists and involve, if freely chosen, modification and by whom the Principles came the work of progressing rights for of bodily appearance or function by into being. It touches briefly on the Target Audience LGBTI people. medical, surgical, or other means) and international human rights framework, other expressions of gender, including This Guide is targeted primarily to the evolution of the articulation of dress, speech, and mannerisms. activists working on lesbian, gay, bisexual, rights for LGBTI people within that A note on language transgender and intersex (LGBTI) issues. framework, of the contribution of In the Preamble the drafters of the In this Guide, the author speaks of the struggle for sexual health and Yogyakarta Principles draw attention “people of diverse sexual orientations Purpose to the recognition to human rights violations people have and gender identities” as a way of of rights for LGBTI people etc. The Guide is an introduction to the experienced “because they are or are including all individuals and groups to Yogyakarta Principles, to facilitate a deeper perceived to be lesbian, gay, or bisexual, whom the provisions of international understanding of the Principles and to 2. The Yogyakarta Principles Up because of their consensual sexual human rights law in relation to sexual encourage their use and their promotion. Close gives detailed insight into the conduct with persons of the same gender, orientation and gender identity apply. Principles. This section discusses or because they are or are perceived to In speaking activists generally, It is hoped the Guide will encourage the Preamble and the Additional be transsexual, transgender or intersex the author most commonly speaks of further exploration of the Yogyakarta Recommendations contained in the or belong to social groups identified in lesbian, gay, bisexual, transsexual, and Principles, of the international human rights Yogyakarta Principles. Its main focus particular societies by sexual orientation intersex (or LGBTI) activists, referring to law upon which they are based, of the is on delving into the Principles or gender identity”. the general goal of activism rather than to systems for monitoring progress, and of the themselves and a number of the activists’ sexual orientation or gender implications of using a human rights based strategies are employed to do that: The Principles themselves include identity. When referring to communities, approach in activist strategies. summarising in non-legal language; definitions of the terms. the author may refer to LGBTI people or a thematic approach to explore how community, even if the particular entity Wider Audience the Principles deal with such topics Sexual orientation is understood to under consideration is a sub-component The Guide is likely to be of interest to as health, treatment by police and refer to each person’s capacity for or a related component of the larger others engaged in the promotion of courts, children, promoting a human profound emotional, affectional and LGBTI movement. Where appropriate, human rights: grassroots human rights rights culture, etc.; making links to sexual attraction to, and intimate and indigenous identities such as hijras, metis, defenders, national equality bodies, the upon which the sexual relations with, individuals of a and kothi are referenced, as well as terms service providers, academics, lawyers, Principles are based; drawing attention different gender or the same gender such as and . The and friends of LGBTI people, to further resources. or more than one gender. author recognises the importance and all manner of NGOs, human rights multiplicity of self-identification, both in commissions, and others. 3. The Yogyakarta Principles in Action is terms of naming oneself and claiming a collection of case studies illustrating one’s rights, and hopes that the reader the impact of the Yogyakarta Principles will the constraints in relation to in a number of different areas: being fully inclusive inherent in the important national legal decisions, writing of this Guide. policy changes, informing better health service delivery, empowering activists, and so on. 10 11 Table of Contents

6 Foreword 8 Acknowledgements 10 Purpose and Structure of this Guide

17 Section 1 39 Section 2 the Yogyakarta Principles – Overview and Context the Yogyakarta Principles Up Close

19 What are the Yogyakarta Principles? 42 the Yogyakarta Principles – The Preamble 21 Why the Yogyakarta Principles? 43 the Yogyakarta Principles on Universality, Non-Discrimination and Recognition before the Law 23 application of the Yogykarta Principles to women, trans, and intersex people 49 the Yogyakarta Principles on The Right to Life and Security of the Person 25 the International Human Rights System 51 the Yogyakarta Principles on The Right to 27 Human Rights at Regional Level 53 the Yogyakarta Principles on Treatment by the Police and the Courts 27 the Inter-American Human Rights System 56 the Yogyakarta Principles on Economic and Social Rights 28 the European System 59 the Yogyakarta Principles on Health 29 the African Human Rights System 63 the Yogyakarta Principles on the Promotion of a Human Rights Culture 29 asian Pacific Forum 67 the Yogyakarta Principles on Freedom of Conscience, Religion, Expression and Assembly 30 rights for LGBTI People and International Human Rights Law 71 the Yogyakarta Principles on Asylum 35 to Whom are the Yogyakarta Principles Addressed? 74 the Yogyakarta Principles on Effective Remedies and Redress, 36 the Yogyakarta Principles – A Living Document and Accountability 76 the Yogyakarta Principles on Children 80 the Yogyakarta Principles on 82 the Yogyakarta Principles Additional Recommendations

12 13 85 Section 3 137 Section 4 The Yogyakarta Principles in Action applying the Yogyakarta Principles

88 Challenging oppressive legal standards 140 Potential Applications 89 Blue Diamond Society (BDS), Nepal 141 Brief Up 92 Naz Foundation and Voices Against 377, India 142 Reference and Disseminate 95 Transgender Netwerk Nederland (TNN) 143 Integrate 98 AIZHI Action Project and Chinese Society for the Study 144 Strategise of Sexual Minorities (CSSM) 145 Conclusion and Resources 101 developing new government policy 102 Brazilian Association of Lesbians, Gays and Bisexuals, Travestis and Transsexuals (ABGLT) 104 United Belize Advocacy Movement (UNIBAM), Belize 106 Swedish International Development Co-operation Agency (Sida) 109 The Alliance for full citizenship for LGBT people, Colombia

111 Seeking a responsive government 112 New Zealand Human Rights Commission 116 Transsexual Organisation for Dignity in Diversity, Chile 118 Unión Afirmativa De Venezuela

120 educating the public 121 SASOD, Guyana 123 Sangama, India 125 Campaign Against Homophobia (KPH), Poland

128 Building a movement 129 07-07-07 Campaign, 132 Meem, Lebanon

14 15 SectionSection 1 1 The Yogyakarta Yogyakarta Principles - Overview Principles and Context Overview and Context

17 Section 1 The Yogyakarta Principles - Overview and Context Section 1 The Yogyakarta Principles - Overview and Context

The growing confidence and creativity everyone else in society. The Principles The Yogyakarta Principles represent an of LGBTI activists over recent decades do not create any new rights; they are, important and exciting new tool for LGBTI builds on the courage and perseverance rather, an articulation of rights already held. of a long of activism. Whether The Yogyakarta Principles are based on activists. The document is the result of a battling the legacy of monstrous colonial- international human rights law as reflected era laws, the dominance of oppressive in international and regional ; the collaborative process with input from activists religious strictures, or the limitations of jurisprudence of human rights bodies a liberal agenda of tolerance that stops and specialised courts and commissions; with expertise in a number of arenas— short of human rights, LGBTI activists authoritative interpretation by the special have demonstrated versatility and rapporteurs and working groups of the UN; including at grassroots level, within national adaptability. Developing new partnerships expert opinion; and State practice. and coalitions, they have led the way and international networks, as human rights with new strategies, and engaged with The Principles seek to be comprehensive new institutions to push for legal and in their scope, both in terms of the rights defenders and advocates, as academics, writers, substantive change for people of diverse covered by law and also in relation to theorists, movement builders—and other legal sexual orientations and gender identities. the actual lived experience of LGBTI Already LGBTI activists have used the people. This was possible because of the and human rights experts. Yogyakarta Principles to significant effect. combined expertise of the drafters: first- It is hoped that this Guide will contribute hand experience of the specifics of rights to the further exploration of the Principles violations as well as intimate knowledge and the realisation of their potential. of the evolution of human rights law to address these specifics. What are the Yogyakarta Principles? They are significant in that this is the first time that both sets of information are The Yogyakarta Principles are a set of brought together in one document. As Principles dealing with international such they are a revelation, both to those human rights law as it applies to people unfamiliar with human rights law and how of diverse sexual orientations and gender far its protections extend, and also to identities. Compiled at an experts meeting those unfamiliar with the level and nature in Yogyakarta, Indonesia, they set forth of rights violations experienced by LGBTI the obligations States are required to people in many parts of the world. take to make sure LGBTI people can enjoy their rights on the same basis as

18 19 Section 1 The Yogyakarta Principles - Overview and Context Section 1 The Yogyakarta Principles - Overview and Context

There are 29 Principles in total: 15. The Right to Adequate Housing Why the Yogyakarta Principles? Within the context of claiming rights as equal citizens, the continuum of attitudes 1. The Right to the Universal 16. The Right to Significant progress has been made towards LGBTI people has ranged from Enjoyment of Human Rights in many parts of the world toward 17. The Right to the Highest acceptance to mild tolerance to extreme acknowledging LGBTI people as equal 2. The Rights to Equality and Attainable Standard of Health hostility. For the most part, even the Non-Discrimination members of society. Nevertheless, 18. Protection from Medical tolerant stopped short of allowing for progress in achieving substantive 3. The Right to Recognition equal recognition within the law. The 19. The Right to Freedom of Opinion equality has been slow in coming and before the Law argument that gay rights meant “special and Expression remains vulnerable. In many other parts rights” has been used loudly and to 4. The Right to Life of the world LGBTI people continue to 20. The Right to Freedom of Peaceful significant effect, and has served to lock 5. The Right to Security of the Person Assembly and Association face criminalisation, marginalisation, people into their entrenched positions discrimination, hatred and many, many 6. The Right to Privacy 21. The Right to Freedom of Thought, of ignorance and fear and to impede Conscience and Religion forms of rights violations. 7. The Right to Freedom from the work of governments to legislate for equality. Arbitrary Deprivation of Liberty 22. The Right to Freedom of Within many mainstream societies, the Movement notion of rights for LGBTI people has 8. The Right to a Fair Trial And yet despite these challenges, 23. The Right to Seek Asylum historically been ignored or treated with 9. The Right to Treatment with community activists and their allies have derision. Across history and cultures– Humanity while in 24. The Right to Found a Family worked tirelessly to address human rights including pre-colonial societies–diversity violations based on sexual orientation 10. The Right to Freedom from 25. The Right to Participate in and fluidity of gender identity and and gender identity at regional, national, and Cruel, Inhuman, Public Life expression and of sexual orientation or Degrading Treatment or and international levels. The framework 26. The Right to Participate in were culturally sanctioned and in some Punishment of international human rights law has Cultural Life instances celebrated. More often, proved a powerful tool to support these 11. The Right to Protection from all however, there was silence, and people 27. The Right to Promote efforts. LGBTI people, whose rights Forms of Exploitation, Sale, and of diverse sexual orientations and gender Human Rights were being denied at home, sought Trafficking of Human Beings identities were rendered invisible. 28. The Right to Effective and found redress at international level. 12. The Remedies and Redress 13. The Right to Social Security and to 29. Accountability Other Social Protection Measures 14. The Right to an Adequate Standard of Living The full text of the Yogyakarta Principles—in Arabic, Chinese, English, French, Spanish, and Russian—is available at www.yogyakartaprinciples.org. Also available on this website are:

• Jurisprudential Annotations to the Yogyakarta Principles, compiled in 2007 at University of Nottingham under the direction of Professor Michael O’Flaherty. • Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles, an article published in the Human Rights Law Review in 2008 by Michael O’Flaherty and John Fisher.

There is also a tracking website (www.ypinaction.org) where you can see how the Principles are being used, view numerous other translations, contribute your own stories, and download a digital version of this Guide. 20 21 Section 1 The Yogyakarta Principles - Overview and Context Section 1 The Yogyakarta Principles - Overview and Context

While independent experts within the Clarification of the obligations would assist Application of the Yogyakarta For example, the right to treatment with international systems reported incidents States to fulfil their duty, the treaty bodies Principles to women, trans, and humanity while in detention applies to of discrimination against LGBTI people to apply the provisions consistently, and intersex people all people. Particular claims seeking and urged adherence to obligations, activists to advocate for change. this right may be different when made The Yogyakarta Principles articulate activists were challenging the failure on behalf of heterosexuals, lesbians, universal rights for all people, but they of their States to provide protection, The International Commission of Jurists or others, depending on the manner in do not suggest specific standards for and treaty bodies were expanding the and the International Service for Human which the right is violated. One claim may particular groups. In the wording of the application of law to include LGBTI Rights, on behalf of a coalition of human seek training, one may seek a different Principles themselves, the drafters sought people. And this work continues and is rights organisations, undertook a project system of segregation, and another may to uphold the universal nature of human expanding. to address this need. The deliberative seek medical care. In whatever way is rights by avoiding wording that would and drafting process was undertaken by a most relevant, any person of any sexual limit rights to particular groups. Thus, Nevertheless, as the introduction to the group of 29 experts—judges, academics, orientation or gender identity can seek instead of speaking about the rights of Yogyakarta Principles acknowledges, “the community activists, lawyers, and United each of the rights listed in the Principles. heterosexuals, homosexuals, lesbians, international response to human rights Nations representatives—representing , bisexuals, or transgender violations based on sexual orientation 25 countries. Notably, seventeen were Notwithstanding the desire to escape people, each Principle is said to apply to and gender identity has been fragmented women. The result is the The Yogyakarta the negative connotations and effects all people regardless of the characteristic and inconsistent.” There needed to Principles on the Application of of identity categories, the LGBTI of actual or perceived sexual orientation be a more widespread knowledge and International Human Rights Law in relation community does organise itself around or gender identity. By expressing the understanding of the extent to which to Sexual Orientation and Gender Identity. identity groups, and common patterns of rights in this way, the drafters have also international human rights law applies to oppression are clear. It may be useful to sought to avoid the necessity of requiring sexual orientation and gender identity. address the reality of the gap between individuals to absolutely categorise the universal nature of the rights and themselves by identity labels that may not the specific ways oppression occurs. be appropriate for all cultural contexts. For example, it is clear that the rights The notions of sexual orientation and The Language of Human Rights violations experienced by lesbian women gender identity are fluid. Requiring and girls are unique, invoking a different Rights holders: a person to subscribe to a particular Those to whom rights are due, as well as those for whom the set of rights claims from other groups. provisions of international law were drafted. The term is intended to dignify and identity group would only perpetuate the Curative rape, the denial of reproductive embolden people to whom rights and dignity are due, rather than allow them to be oppression that the rights are seeking technologies and services, gender-based characterised as victims in need of charity or special treatment. to combat. None of the rights in the violence, and denial of child custody are Principles can be considered particular Duty-bearers: Refers to the States Parties that are bound by international human a few of many types of rights violations or unique to one group, but rather are rights law to ensure rights holders enjoy the rights due to them. All agencies of the experienced distinctly by lesbian and enjoyed by all. State are duty-bearers. bisexual women and girls. Treaty, covenant, convention: Synonymous terms referring to instruments of law. The foundation of international human rights law began with the Universal Declaration of Human Rights (UDHR). All of the instruments since then find their basis in the UDHR. Many States and societies impose gender and sexual orientation norms on individuals States Parties: Countries that have ratified a treaty. through custom, law, and violence and seek to control how they experience personal relationships and how they identify themselves. The policing of sexuality remains a Signed/ratified:Refers to a State’s status regarding a human rights convention. major force behind continuing gender-based violence and . Signing indicates an intention to ratify. Ratifying means that the State is legally bound by the convention’s provisions. From the Introduction to The Yogyakarta Principles on the Application of International States obligations: Concrete duties laid out in a treaty for all States Parties. Human Rights Law in relation to Sexual Orientation and Gender Identity. 22 23 Section 1 The Yogyakarta Principles - Overview and Context Section 1 The Yogyakarta Principles - Overview and Context

The introduction recognises the common orientation. Within the UN system the drafters of the Yogyakarta Principles did entirely. Some intersex people choose to roots of gender and sexual orientation Special Procedures of the Human Rights not specifically address the rights of identify themselves as neither male nor oppression, noting the impact of “the Council have drawn attention to a range intersex people, the Principles do identify . In choosing to employ gender- policy of sexuality” on gender-based of examples of rights violations on the the right to be free from medical abuses. neutral language, the drafters of the violence and gender inequality. It is up basis of gender identity. The Yogyakarta Advocacy on behalf of intersex people Yogyakarta Principles sought to create a to the advocate, hopefully with examples Principles affirm that all international will include seeking specific affirmation of space within which the lived experience from this Guide and with reference to human rights legal protections apply each of the listed rights. of all, including intersex people, can be the range of specific violations cited by to transgender people on the basis of acknowledged and respected. human rights bodies and experts, to the principles of universality and non- It is worth remarking that the language review the Principles and create effective discrimination. The drafters sought of the Yogyakarta Principles is, as noted The International Human Rights arguments for each group. to enumerate the multiplicity of above, deliberately phrased in neutral System discriminatory practices experienced by terms. While it can be argued that such The Universal Declaration of Human Rights Transgender, or trans, people are trans people. neutral language has the potential to (UDHR) signaled the beginning of the individuals whose be exclusionary, as in the case of not modern concept and application of human and/or gender identity differs from Intersex people are another group who accounting for the specific experience of rights. Adopted by the General Assembly conventional expectations based on face unique patterns of rights violations women, it does permit an understanding of the in 1948, the UDHR the physical sex they were assigned at arising out of their experiences. Intersex of the applicability of the Principles gave expression to those fundamental birth. Trans is a political umbrella term is an umbrella term that refers to a variety without reference to a binary gender rights that should be protected and that is used to describe a wide range of biological conditions in which a person framework. That is, the neutral language to which everyone everywhere could of identities, experiences, and people is born with reproductive, sexual, or does not presuppose that there are only rightfully hope to attain. whose appearance seem to conflict chromosomal structures that do not seem two /: male/female or / with the binary gender norms of society, to fit the typical definitions of female or . Rather, the language enables In 1966 two treaties where adopted by the including transsexuals, transgender, male. According to the Intersex Society the Principles to apply to all people, United Nations: the International Covenant travesti, gender , cross dressers, of (ISNA), medical experts whether they choose an identity within on Civil and Political Rights (ICCPR) and queens, drag kings, and many more. estimate the number of children born with a binary gender framework or outside it the International Covenant on Economic, It also includes indigenous expressions genitalia so ambiguous that a consultation of gender, such as , , kothi, with a specialist in sex differentiation is fa’afafine, and many more, which may be necessary at between 1 in 1500 to 1 in celebrated, accepted, or rejected in their 2000 births. However, not all intersex cultural context. Trans people may or may conditions are identifiable at birth, some Monitoring International Human Rights Law at the UN not choose to alter their bodies through conditions do not become apparent Treaty bodies are committees of independent experts whose role is to monitor a clothing, make-up, mannerisms, surgery, until puberty, or when seeking fertility government’s progress in implementing international human rights law. Every three or hormone treatment; some who might treatment, or even at autopsy. to four years, States Parties submit country reports detailing what they have done want to choose the medical route may to comply with their obligations. NGOs can submit shadow reports in which they not have access to or resources for such The experience of intersex people make their own assessments of their country’s progress. Shadow reports provide a treatment. Trans people can have any perfectly illustrates the point that the platform for civil society to participate in the monitoring process. sexual orientation: lesbian, bisexual, gay, definition of what is male and female is Following the review process, the treaty body addresses its concerns and or straight. entirely constructed by people and is recommendations to the State party in the form of concluding observations. NGOs not a biologically-based categorisation. lobby their government to respond to the concluding observations. Each treaty International human rights law has not Again, rights-based advocacy must body also publishes general comments on thematic issues or its methods of work, dealt with the rights violations of trans be based on universal rights that are which deepen the interpretation of the law. General comments are based on trends people to the same extent as it has available regardless of how people are in country reports and individual complaints. They assist states in implementing their with violations on the grounds of sexual categorised. For example, although the treaty obligations but do not impose new obligations. 24 25 Section 1 The Yogyakarta Principles - Overview and Context Section 1 The Yogyakarta Principles - Overview and Context

Social and Cultural Rights (ICESCR). These International Human Human Rights at the The Commission also recommends the came into effect in 1976 and became the Rights Treaties Regional Level adoption of measures and seeks advice cornerstone of international human rights from the Court. law. Since then the scope of the law has ACRONYMN Name The Inter-American Human continued to expand. The Commission has recently begun Rights System International Covenant ICCPR to consider issues relating to sexual on Civil and Political Rights A primary function of the international The American Declaration of the Rights orientation. In 1996 Marta Lucia Alvarez human rights system is to monitor International Covenant ICESCR and Duties of Man predates the UDHR Giraldo petitioned the Commission, government compliance with on Economic, Social and and marks the beginning of the of Inter- alleging that the prison authorities in human rights law. As observations, Cultural Rights American human rights system. It was Colombia discriminated against recommendations, and rulings are made adopted by the Organisation of American when they refused her conjugal International Convention ICERD by the monitoring and adjudication States (OAS) in Colombia in 1948. The visits with her same-sex partner. The on the Elimination of bodies, a body of jurisprudence has All Forms of Racial American Convention of Human Rights— Commission ruled in 1999 that the case developed that has deepened the Discrimination adopted in 1969, and entered into force was admissible; ultimately a friendly interpretation and the application of in 1978—is now the cornerstone of the settlement was reached. law. Implementation of the law and International Convention ICEDAW Inter-American Human Rights System. compliance with the obligations is slow, on the Elimination of All Twenty-five of the 35 countries of the The second case dealing with issues of and painstakingly so. Nevertheless the Forms of Discrimination OAS have ratified, and are therefore sexual orientation was received by the against Women international human rights framework States Parties to the Convention. Commission in 2004 and granted a full has become an important resource for International Convention ICRC hearing in 2008. The case relates to a advocacy groups. The language of human on the Rights of the Child The Inter-American Commission on Chilean woman, Ms. Karen Atala, who, rights informs advocacy and action at Human Rights (IACHR) was created in having separated from her husband, International Convention ICAT all levels. Not only have activists helped 1959 and formally established in 1960 went on to develop a co-habiting against Torture and to shape law at international level, and is one of two organs charged with relationship with a woman. Initially, Other Cruel, Inhuman or but they have also worked to translate Degrading Treatment or promoting and protecting human rights Ms. Atala was granted custody of the the provisions of the law so as to be Punishment in the region. The other is the Inter- three children. However, in 2004 the meaningful to oppressed and minority American Court of Human Rights, which Supreme Court of Justice of Chile groups at home. International Convention ICMW held its first hearing in 1979. Individual revoked the custody arrangement on the Protection o the citizens must report human rights in favour of the children’s father. Rights of all Migrant The history of human rights is the violations and seek a hearing with the Workers and Members of history of marginalised groups. Women, Commission. The Court rules on cases In bringing her case to the IACHR, Ms. Their Families indigenous people, people from the submitted to it by either the Commission Atala claimed that her sexual orientation Global South and East, children, people International Convention ICPRPD or a State Party. The Court is, therefore, was a decisive factor in the Court’s ruling with , migrants, and refugees on the Protection of the the last resort within the system. In to grant custody to her husband. She also have taken up the language to press their Rights and Dignity of addition to adjudicating on allegations of claimed that the Court’s characterisation claims and to assert that they are human Persons with Disabilities human rights violations, the Commission of homosexual parents was discriminatory beings who demand and deserve respect International Convention undertakes a number of activities to and based on stereotypical views of their and rights. Their continuing struggles for the Protection of All promote the observance of human rights. ability to care for children and to create a testify to how far the world is from giving Persons from Enforced This includes country visits and country healthy family environment. In December a tangible meaning to universality, Disappearance reports as well as the publication of 2009 the IACHR ruled that Ms. Atala’s and reveal that the ideal of universality specially commissioned studies and the rights had been violated and urged the continues to shape politics, define organisation of conferences and seminars. State to make reparations to her and to freedom, and drive change. 26 27 Section 1 The Yogyakarta Principles - Overview and Context Section 1 The Yogyakarta Principles - Overview and Context

take steps to adopt legislation, policies, (CoE) in 1950, is the major human rights anywhere to deal specifically with this interpreting the provisions of the Charter. and programmes to prohibit and end instrument at the European level. Forty- area, the Recommendation sets out a The African Court on Human Rights came discrimination based on sexual orientation. three of the forty-seven members States comprehensive range of human rights into existence by virtue of a Protocol to of the CoE are party to the Convention. that are applicable in ensuring the equal the Charter, which entered into force OAS General Assembly Resolutions The other important instrument is the dignity of people of diverse sexual in 2004. Thus far the Court has been The General Assembly of the OAS has , which was orientations and gender identities. It concerned with organisational matters; it issued two resolutions in recent years in adopted in 1965. The Convention deals incorporates practical measures to be remains to be seen what impact its role relation to sexual orientation and gender with civil and political rights, while the taken by member states to ensure the will have on the overall agenda of the identity. In both, the Assembly notes Charter deals with economic, social, full enjoyment of human rights over promotion and protection of human rights its concern about acts of violence and and cultural rights. Like the UN system, time. Implementation is backed by an within the OAU. other related human rights violations the CoE has adopted a number of agreement by the Committee of Ministers against people because of their sexual other conventions covering such areas that progress will be reviewed in three The African Commission has not yet dealt orientation and gender identity. In the as torture, national minorities, gender years’ time, and, it is expected, at regular directly with the issue of discrimination on earlier one issued in 2008, the Assembly equality, and migrant workers. Cases intervals thereafter. the basis of sexual orientation and gender commits to include the topic of Human dealing with the violations of rights are identity. However, in a recent decision on rights, sexual orientation, and gender heard by the European Court of Human The Recommendation is important in its a case dealing with discrimination on the identity on the agenda of the thirty-ninth Rights in Strasbourg, . This Court recognition of important principles and ground of political opinion brought by the session of the General Assembly and to is the only permanent human rights court facts, including: Human Rights NGO Forum, ask the Permanent Council to report at sitting on a full-time basis. • The principle of universality of the Commission explicitly includes sexual that session on the implementation of the human rights in that they apply to all, orientation as a protected ground under resolution. The second resolution, issued In March 2010 the CoE took an including people of diverse sexual Article 2 of the African Charter. in June 2009, urges States to investigate important step forward in providing legal orientations and gender identities; and prosecute violations of human rights protection for people of diverse sexual • LGBTI people have for centuries Asian Pacific Forum orientations and gender identities with on the basis of sexual orientation and been subjected to intolerance and In the Pacific region there is not the introduction of a Recommendation gender identity and to protect human discrimination, and an inter-governmental body with the from the Committee of Ministers rights defenders in this area. • That neither cultural, traditional, and ability to address specific instances of to member states on measures to religious values, nor the rules of the human rights violations. One is under combat discrimination on grounds of The European System dominant culture, can be invoked to development within the Association sexual orientation or gender identity. justify discrimination on grounds of of Southeast Asian Nations (ASEAN), The European Convention on Human Described by the Secretary General of sexual orientation or gender identity. a regional and economic bloc Rights and Fundamental Freedoms, the CoE as the first legal instrument adopted by the Council of with a policy of non-interference in the The African Human Rights System internal affairs of its member states. The Intergovernmental Commission on The African Charter on Human Rights Human Rights (AICHR), which began its and Peoples’ Rights was adopted in 1981 work in late 2009, was formed by ASEAN In 2003, the Inter-American Court of Human Rights in its Advisory Opinion on and came into force in 1986. It has been as a step toward creating a regional the Juridical Condition and Rights of Undocumented Migrants included sexual ratified by all 53 members States of the mechanism for addressing human rights. orientation as a protected ground, thus signaling the desirability of redressing Organization of African Unity (OAU). The neglect in this area. African Commission on Human Rights is In the absence of any inter-governmental the main body charged with the promotion Also of note is the reference to sexual orientation in the 2008 Principles and regional human rights arrangement and protection of the rights enshrined Best Practices on the Protection of Persons Deprived of Liberty in the Americas. in the Asia Pacific, the Asian Pacific in the Charter and was inaugurated in Under Principle II on Equality and Non-Discrimination, there is a prohibition on Forum (APF), made up of National discrimination against people because of sexual orientation. 1987. The Commission also has a role in 28 29 Section 1 The Yogyakarta Principles - Overview and Context Section 1 The Yogyakarta Principles - Overview and Context

Human Rights Institutions (NHRIs), was international human rights law regarding Human Rights. The first such ruling was in of in all three countries. In founded in 1996. NHRIs, or human rights issues of sexual orientation and gender 1981 in a case brought by a gay man in subsequent years, the Court ruled against commissions, are independent authorities identity. Once issued by the APF, the Northern Ireland, where male homosexual discrimination on the grounds of sexual established by law at the national level review of national laws may offer activists acts were a crime. The Court ruled that orientation in a number of important that have the power to receive and an authoritative strategic blueprint for the law constituted an unreasonable areas of daily life. In 2002, the Court act on individual complaints of human legislative and legal action in the region. interference in his private life. Its decision made its first ruling in relation to gender rights, submit recommendations to the went on to say that hostility on moral identity, deciding that a transgender executive and legislature, and seek Rights for LGBTI People and grounds was not sufficient to justify woman in the who had national compliance with international International Human Rights Law criminalisation of homosexuality and that undergone gender reassignment surgery human rights standards. About seventeen a democratic society should demonstrate was entitled to have this change recorded In recent years, international human countries in this diverse region, stretching tolerance and prohibit discrimination. in her birth certificate and was entitled to rights bodies responsible for monitoring from New Zealand to , have such Two similar cases followed in the same marry in her new gender. and adjudicating the law have interpreted institutions. Four countries (Indonesia, decade—one from the Republic of Ireland the non-discrimination clause in the , , and ) with and the other from . The decisions treaties to include sexual orientation. In Other important decisions by the UN national human rights institutions in the of the ECtHR led to the decriminalisation one well-known example in 1994, the Human Rights Committee concern are also members of UN Human Rights Committee (HRC) ASEAN. The APF provides support and examined the law of Tasmania forbidding coordination to its member countries. male homosexual acts and decided that it was arbitrary and unreasonable. Even In May 2009, the APF brought together The NGO Forum of the African Commission is a gathering that precedes each bi- though sexual orientation may not be th several member institutions in Yogyakarta, annual session of the Commission. In November 2009, at 46 Session of the African explicitly included in some international Commission, the NGO forum passed a Resolution to end all forms of discrimination Indonesia, to discuss the role of NHRIs treaties, human rights bodies have based on sexual orientation and gender identity in Africa. The resolution was adopted in promoting the implementation of interpreted prohibitions of discrimination by consensus by human rights groups from across Africa. It cites the Yogyakarta the Yogyakarta Principles. A series of based on “sex” or “other grounds” to Principles and calls on the Commission to condemn discrimination and hatred based recommendations was made to the APF’s also prohibit discrimination based on on sexual orientation and gender identity and to create a mechanism to address full membership regarding the Principles sexual orientation and gender identity. human rights violations based on sexual orientation and gender identity. It urges States and following this, the governing body to decriminalise non-heteronormative activities and gender identities and to end of the forum adopted the Yogyakarta impunity for human rights violations based on sexual orientation and gender identity. The decision made by the HRC looked Principles as the reference point for to the rulings of the European Court of

In December 2008, the High Court of ruled that the Government violated the rights of two lesbian human rights defenders and should pay damages to the claimants, Victor Juliet Mukasa and Yyonne Oyo. Ms. Mukasa was attacked and Together with and equal protection of the law, the her home raided by government officials in July 2005. Both women were illegally principle of non-discrimination provided under Article 2 of the Charter provides arrested and sexually harassed and subjected to other inhuman and degrading the foundation for the enjoyment of all human rights. As Shestack has observed, treatment while in custody. equality and non-discrimination “are central to the human rights movement.” The aim of this principle is to ensure equality of treatment for individuals irrespective of The High Court ruling is an important victory in a country where violence against nationality, sex, racial or ethnic origin, political opinion, religion or belief, , LGBTI people is widespread. The ruling pointed to breaches of the women’s rights age, or sexual orientation. under the constitution of Uganda, in particular the right to privacy, the right to personal liberty, and the right to protection from torture and inhuman treatment. In Paragraph 169 of Annexure III addition the judgment cited breaches to international human rights law, to which Decision by the African Commission on communication 245/2002 – Zimbabwe Uganda is a party, including the UDHR and the Convention on the Elimination of All Human Rights NGO Forum/Zimbabwe, and Zimbabwe’s response to the decision Forms of Discrimination against Women (CEDAW). 30 31 Section 1 The Yogyakarta Principles - Overview and Context Section 1 The Yogyakarta Principles - Overview and Context

pension rights. In a decision looking Nevertheless, despite significant progress, the strategic advocacy efforts of women (BPfA) the following year did. The BPfA at Colombian law, the Committee the reportage and discussion on issues activists from all over the world in relation was, and is, an immensely important rejected Columbia’s argument that, in of sexual orientation and gender identity to the women’s rights agenda—that benchmark document in many ways; in not permitting the transfer of benefits throughout the UN is inconsistent. As the struggle for rights for LGBTI people the context of rights for people of diverse between same-sex , it is was mentioned earlier in this Guide, it was gained an important boost. sexual orientations and gender identities, trying to protect heterosexual unions these limitations within the system that its articulation of women’s rights as rather than discriminate against same- was one of the motivating factors in the Women activists advanced the debate including sexual rights represented an sex unions. UN Special Rapporteurs and development of the Yogyakarta Principles. toward sexual rights for women. opportunity to advance the debate even Working Groups have also contributed Beginning with the International further toward the recognition of the right toward the development of legal The work of activists in interacting with Conference on Population and to freely express one’s sexual orientation protection for people of diverse sexual the various organs of the international Development in in 1994, the and gender identity without conformity to orientations and gender identities by and regional human rights systems has debate on reproductive rights for women any prescribed set of norms. issuing reports that specifically refer to been, and continues to be, a powerful moved beyond health and medical the human rights of LGBTI people. The driving force toward the full realisation concerns to an understanding of women’s The United Nations has sponsored a first to do so was the Special Rapporteur of rights by all LGBTI people. Section 2, right to sexual . While the series of world conferences on on Extrajudicial, Summary, and Arbitrary of this Guide, The Yogyakarta Principles Cairo conference did not produce the over the past several decades. At the Executions in 1999, when she included Up Close, gives many examples of how advancement in the debate that women 2001 Durban conference on Racism, individual cases of severe persecution of national courts and legislatures fed sought, the Beijing Platform for Action , and sexual minorities. the development of the international human right systems by interpreting A 2001 meeting between the Special international human rights in the context Rapporteur on Freedom of Expression of issues raised by local LGBTI activists. with trans activists in marks a It is not within the scope of this Guide to The Human Rights Council (HRC) is the principal UN intergovernmental body significant moment in the recognition trace the history of the involvement of responsible for human rights. Established in 2006, the 47 member States that of transgender issues by UN human LGBTI activists within the various arenas; make up the HRC are elected by the General Assembly of the United Nations. rights experts. That same year the highlights will suffice. The term is three years, and no member may occupy a seat for more than two Special Representative on Human Rights consecutive terms. The seats are distributed among the UN’s regional groups as Defenders met with LGBTI organisations Intergovernmental UN conferences follows: thirteen for Africa, thirteen for Asia, six for , eight for Latin in Colombia. Also in 2001, the Special have also had a distinct impact on the America and the , and seven for Western European and Others Group. Rapporteur on Torture raised the issue development of human rights. One of torture and discrimination against such set of conferences, focusing on the A key activity of the Council is to conduct a Universal Periodic Review (UPR) to sexual minorities for the first time before rights of women, began with the first examine the human rights record of each of the 192 UN Member States. The UPR the UN General Assembly. Finally, the World Conference on Women in Working Group reviews 48 countries per year over a period of three two-week sessions; this means every country will be reviewed every four years. Each country Special Rapporteur on the in 1975. These conferences provided a under review submits a national report detailing its progress on all obligations–not has also explored the issue of sexual venue for governments and communities just those relating to an individual treaty. Reports from independent human rights orientation discrimination in some of his to seek to establish an international experts and groups, other stakeholders (including NGOs), and National Human annual reports. Notable among these was consensus supporting human rights. Rights Institutions are also taken into account. the 2004 report to the UN Commission Their contribution has been toward the on Human Rights with its discussion on broad and deepening agenda of rights for Activists have the opportunity to participate in the UPR by submitting information sexual rights as human rights and the women, while at the same time seeking to about States to the Office of the High Commissioner for Human Rights (OHCHR), affirmation that sexual rights includes the include issues specific to lesbian women which then summarises the information and presents it to the Council. Activists right to express one’s sexual orientation. and girls. It is within this arena— can also contact Council members directly to ensure that the Council’s review of a particular State focuses on issues of concern to the activists. 32 33 Section 1 The Yogyakarta Principles - Overview and Context Section 1 The Yogyakarta Principles - Overview and Context

Related Intolerance LGBTI activists OIC to boycott an Arab-Latin American identity, the statement also calls for the obligation to legally recognise a examined the intersection of various Trade summit scheduled for the decriminalisation of homosexuality in those person’s chosen identity, which means forms of oppressions. LGBTI activists same year. countries where it still remains a crime. providing them with the means to attending the conference—as well as a change official documentation if number of governments—sought to give Two other milestones are worth This was the first time that the status of they choose to change their identity visibility to issues of sexual orientation mentioning. The first concerns a rights for LGBTI people was brought from that officially registered at birth. and gender identity and formulate statement delivered by Norway on before the General Assembly. It was States are also required to facilitate resolutions that would eventually find behalf of 54 member states of the supported by countries from all five gender identity change without the their way to other international bodies. United Nations to the UN Human Rights continents, including from a number of requirement of sterilisation. A resolution later introduced by Brazil Council in in December 2006. African countries. The statement was • Principle 6, The Right to Privacy, at the United National Human Rights The statement condemned human initially sponsored by The Netherlands reminds States of their obligation to Commission is a prime example of the rights violations directed against people and France, on behalf of the European repeal laws that criminalise same- impact of the Durban conference. because of their sexual orientation or Union, who were joined in the drafting sex sexual activity, to ensure people gender identity, commended the work process by a cross-regional group of have the right to choose how, when, The draft resolution is a milestone in the of UN mechanisms and civil society countries, including Brazil, Norway, and to whom they reveal information journey toward recognition of human in this area, and called on UN Special Croatia, Gabon, and Japan. relating to their sexual orientation and/ rights for people of diverse sexual Procedures and Treaty Bodies to address or gender identity, and to strike down orientations and gender identities in these issues. It also urged the Human To Whom are the Yogyakarta any laws that prohibit or criminalise the United Nations. Presented to the Rights Council to pay due attention to Principles addressed? expression of gender identity. then Human Rights Commission by human rights violations based on sexual Primarily the Yogyakarta Principles are • Principle 9, The Right to Treatment the Brazilian government in 2003, the orientation and gender identity and, in targeted toward States, since it is mainly with Humanity while in Detention, proposed resolution stirred a debate particular, to put the matter on its agenda governments that have responsibilities addresses the obligation to adopt that became highly contentious, for its next session. under international human rights law. measures that will protect prisoners at with particular opposition from the The obligations apply to all facets of the risk of violence because of their sexual Organization of the Islamic Conference The second involves a significantly official machinery and personnel of the orientation or gender identity. (OIC). The vote was postponed until the more powerful statement, this time State: government departments; the 2004 session of the Commission. Despite supported by 66 member states and • Principle 16, The , agencies that deliver health, education, a concerted lobbying effort by a coalition delivered within the General Assembly addresses obligations including social , and other such services on of international and national NGOs of the United Nations in , in protection for students and teachers behalf of the State; the police; the court; at the following session, the Brazilian December 2008. Once again condemning in schools who face the risk of and the military. government postponed consideration of violence, killings and executions, torture, and harassment because of sexual the resolution. Some observers believe arbitrary arrest and deprivation of orientation and gender identity; the The Principles speak to all the functions of that the withdrawal by the Brazilian economic, social, and cultural rights on provision of an educational system that the State, drawing attention to how, government was due to a threat by the the basis of sexual orientation and gender promotes respect for human rights and in accessing State services or in trying to respect for diverse sexual orientations live and work and participate in society, and gender identities; and measures LGBTI people have experienced or are to ensure that LGBTI students are not likely to experience unequal treatment discriminated against when it comes to relative to others in society. So that, for the administration of discipline. Those who are lesbian, gay or bisexual, those who are transgender, transsexual or example, under intersex, are full and equal members of the human family, and are entitled to be • Principle 17, The Right to the Highest Standard of Health, requires treated as such. • Principle 3, the Right to Recognition States to provide competent and before the Law, deals with the State’s United Nations High Commissioner for Human Rights, Navenethem Pillay 34 35 Section 1 The Yogyakarta Principles - Overview and Context Section 1 The Yogyakarta Principles - Overview and Context

non-discriminatory care for gender the Principles that are addressed to other the Yogyakarta Principles, the weight and reassignment procedures; equality individuals, agencies, and professional authority of international law provides the of treatment by health personnel to bodies that also have responsibilities to backup. On the other hand, there are areas LGBTI patients and their partners; and promote and protect human rights. These of life for LGBTI people that are not dealt policies and programmes to provide include, for example, the United Nations with in the Yogyakarta Principles and so training to health care personnel so High Commissioner for Human Rights, they expose the inequalities in law that that they are equipped to provide the Human Rights Council, UN agencies, remain a reality. care that is sensitive to the needs of experts and treaty bodies, national human patients of diverse sexual orientations rights commissions, courts, funders, the Just as international human rights law is and gender identities. media and others. a living, evolving instrument, so too the Yogyakarta Principles is a living document. Because the primary target audience for Finally, the Yogyakarta Principles are The scope of the Principles will expand the Yogyakarta Principles is the State, also a tool and resource to others, as the law relating to people of diverse their language and structure reflect those including academics, lawyers, human sexual orientations and gender identities of the international law upon which rights defenders, human rights monitors, continues to expand. they are based. The structure is formal and activists. and the language is authoritative and detailed in the manner associated with The Yogyakarta Principles – legal documents that seek to cover every a Living Document eventuality. In this way, policy makers and It is important to understand that the legislators can readily determine where Yogyakarta Principles are not a wish list— in their system of laws and processes of they are not aspirational. They reflect what governance changes need to be made the law currently says. On the positive so as to comply with the obligations. As side, this means that in claiming the rights such, the Yogyakarta Principles are an articulated in the Yogyakarta Principles invaluable tool and resource. there is the security of solid ground. In insisting to governments that they have In addition, there are a number of a duty to fulfill the rights spelled out in important recommendations appended to

Special procedures is the term given to the mechanisms established to assemble information and expertise to assist the HRC in its work. The term includes Special Rapporteurs, Special Representative of the Secretary-General, Independent Experts, and Working Groups. Each has a mandate from the HRC, which has as its focus either a country or theme. There are currently 31 thematic and 8 country mandates. RECALLING that all human beings are born free and equal in dignity and A primary function of the special procedures is to receive information about rights rights, and that everyone is entitled to the enjoyment of human rights without violations and to seek clarification from the government in the country concerned distinction of any kind, such as race, colour, sex language, religion, political or before drafting a report to the HRC. Special Rapporteurs often organise regional other opinion, national or social origin, property, birth or other status; or national consultations with civil society as a way of learning about situations on the ground. Opening paragraph of the Preamble to the Yogyakarta Principles 36 37 SectionSection 1 2 TheThe Yogyakarta Yogyakarta Principles - Overview Principles and Context Up Close

39 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

On one level, it is enough to know that the In this section a number of approaches A primary goal of this Guide is to encourage Yogyakarta Principles on the Application are used to explore the Principles, the promotion of the Yogyakarta Principles of International Human Rights Law in including: relation to Sexual Orientation and Gender among policy makers and politicians, decision Identity is an articulation of international • Showing how the structure and law and that as such it sets out what language of the Principles mirrors that makers and the general population, as well as countries are legally bound to do in order of the international human rights law to ensure that LGBTI people enjoy the on which they are based; among human rights defenders and rights- same rights and dignity as everyone else. • Using a thematic approach to discuss a number of Principles together, holders. Activists—particularly LGBTI Understanding the Principles at a deeper for example, Health, Families, activists, but including the wider community level, however, will bring additional Children, and Treatment within rewards and expand the opportunities the Judicial System; for their broader application. This • Pointing to the wealth of official of human rights activists—are to the forefront section hopes to go some way on rights for LGBTI people, toward elaborating the intricacies and in this regard. with reference to the General implications of the Yogyakarta Principles. Comments and Recommendations It is hoped the overview provided in this of treaty bodies, reports from Special section will encourage further exploration Rapporteurs and working groups, and of the Principles and of the broader judicial decisions and rulings in relation system of international human rights to claims of rights violations. law. And it is important to note that the discussion of the Principles throughout this Guide represents an overview; it Some explanation is provided of the is not exhaustive. As with the law, the international human rights systems. Principles hold the capacity for almost These systems were designed to ensure endless scrutiny. Whether it is to explore the full implementation by governments their application, maximise their use, or of human rights through procedures for critique their limitations, it is the in-depth independent monitoring, peer review, examination of the Principles by activists and accountability, as well as mechanisms in relation to what is known on the ground for civil society participation. They can that will yield their full potential. appear daunting in their complexity and, while it is not necessary to understand their workings in order to understand and work with the Yogyakarta Principles, it is hoped that, for those new to this area, the overview will prove useful.

40 41 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

The Yogyakarta Principles – The Preamble The Yogyakarta Principles on Universality, Non-Discrimination and Recognition before the Law The primary function of the Preamble is to explain the rationale for the drafting of the Yogyakarta Principles. As such, it draws Main Principles: 1, 2, 3 attention to the breadth of human rights violations experienced by people because of their sexual orientation and/or gender identity. Principles 1 to 3 set out the principles of the universality of human Similarly, the Preamble highlights the principles of universality rights and their application to all persons without discrimination, and non-discrimination, integral to human rights law, as a starting as well as the right of all people to recognition before the law. place for a discussion on the application of the law to people of diverse sexual orientations and gender identities.

Michael O’Flaherty, one of the signatories The aim of this Guide’s treatment of and Rapporteur for the development this first Principle is to demonstrate of the Yogyakarta Principles, explains how the language and the structure of It begins by recalling Articles 1 and 2 based on the notion of the inferiority that the experts placed these elements the Yogyakarta Principles mirrors those of the Universal Declaration of Human of one sex. Integral to the goal of equality at the beginning of the text in order of the international human rights law Rights, thereby situating the Principles between men and women is respect to recall “the primordial significance upon which they are based. within the context of the foundations for sexual rights, sexual orientation, of the universality of human rights and of international human rights. The final and gender identity. The Preamble the scale and extent of discrimination The first sentence of Principle 1 states: paragraph of the Preamble reinforces reminds us that the international targeted against people of diverse sexual the link between the Principles and community has recognised the right of orientations and gender identities, as All human beings are born free international law by noting that the all persons to freely decide on matters well as the manner in which they are and equal in dignity and rights. Principles reflect the current state of the related to sexuality. commonly rendered invisible within a law and will, therefore, require revision as society and its legal structures.” (See This is also the first sentence of the the law continues to develop. The Preamble provides definitions for Sexual Orientation, Gender Identity Universal Declaration of Human Rights, We are reminded of the absolute both sexual orientation and gender and International Human Rights Law: adopted over 60 years ago within prohibition of discrimination in relation identity. These are cited earlier in this Contextualising the Yogyakarta Principles, the United Nations, which marks the to the enjoyment of human rights, Guide on page 11. by Michael O’Flaherty and John Fisher at beginning of the formalisation of a set and are reminded too of how people www.yogyakartaprinciples.org) of laws relating to human rights to which can experience multiple forms of Finally the Preamble points to the countries all around the world would discrimination, for example because of value of systematically drawing together Principle 1, The Right to the Universal commit themselves. What is now a gender, race, disability, or a number of in one document the specific ways in Enjoyment of Human Rights, articulates comprehensive and seemingly complex other characteristics, thus compounding which international human rights law one of the fundamental guiding principles system begins with this simple statement their difficulties. relates to the lives and experiences of that underpin the rationale for formalising of inclusivity—“All human beings…”. persons of diverse sexual orientations and promoting a global approach to Importantly, the Preamble touches on and gender identities. making life better for all the peoples of the issue of equality between men and the world. women and the imperative of combating practices, , and customs

42 43 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

But not all people are afforded few, if any, ensure the equal treatment the Yogyakarta Principles, their provisions To say that human rights are equal treatment, and over the years of people of diverse sexual orientations are those compiled from the relevant interdependent and interrelated international human rights law has had to and gender identities, international law treaties and associated law. They focus means that the realisation of one often be further elaborated to demonstrate that demands that they do. The development on the specific forms of ill treatment and depends, either in whole or in part, on All means All: that All means people of of the law since the UDHR clearly says discrimination experienced by people of the realisation of others. The right to all races, that All means children, that All that All means people of all sexual diverse sexual orientations and gender adequate housing, for example, may means women, that All means people of orientations and gender identities. identities, and at the same time are an depend on the right to work. all religions, and so on. accurate representation of how the States After the statement of principle, four are to respond. Fundamental to complying with the range And so the second sentence of Principle 1: obligations are listed under Principle 1. of obligations embodied in international It is worth noting that the obligations— The “States shall” language is also a law, is the imperative to incorporate the Human beings of all sexual consistent among all 29 Principles—are reminder that the Yogyakarta Principles standards of universality, interrelatedness, orientations and gender identities preceded by the two words: “States are targeted to States. In the language of interdependence and indivisibility into a are entitled to the full enjoyment shall”. This signals that what follows human rights law, to the “duty-bearers”— country’s constitution or other appropriate of all human rights. are legal requirements. The language those countries that have voluntarily legislation. Beyond that, States are is declarative and authoritative. Again, signed up to and ratified international required to be proactive in making sure it reflects the language of international human rights law and have a duty to that people can realise their rights. The This statement is not an aspiration, human rights law. Thus, this is not a set protect the rights of people of diverse detail of how this is to be achieved despite the continuing struggle by LGBTI of recommendations of the type usually sexual orientations and gender identities. is contained in the remaining three activists against discrimination. This is associated with a study by a group obligations of Principle 1: the status of international law. Though of independent experts. While all the The first obligation for Principle 1 talks the laws of many countries fail to provide obligations are informed by the expertise about the nature of rights as universal, • Laws have to be amended to bring even basic protection of their rights, and of those who are responsible for drafting interrelated, interdependent, and them into line with the notion of indivisible. These concepts are intended ensuring full human rights for all; to expand our understanding of the • Public education and awareness comprehensive nature of human rights programmes should be undertaken One way for NGOs to engage with the UN human rights system is by gaining and the corresponding attention that is so as to create and promote a consultative status through the offices of the Economic and Social Council of the required in making rights reality. Much has culture of respect for human rights UN (ECOSOC). Known as ECOSOC status, accreditation has been granted to over been written and debated about these and so enhance the opportunity to 3000 NGOs, enabling them to submit written and oral reports at UN meetings and concepts. In simple terms: experience those rights; to organise events on UN premises. To date, just 10 LGBTI groups have gained • In order to demonstrate the ECOSOC status, the most recent being ABGLT (featured in Section 3 of this Guide Universal on page 102) in July 2009. ABGLT is the first LGBTI organisation from the Global means that all people, in interrelatedness and indivisibility of South to attain ECOSOC status. all parts of the world, are entitled to rights, States should adopt an holistic human rights. They cannot voluntarily approach by integrating the legal NGOs without consultative (ECOSOC) status can also with the UN system be given up, nor taken away. norms and standards in all policy in various ways: and decision-making processes. A Indivisible means that all rights— pluralistic approach will affirm the Treaty bodies: through shadow reports and individual complaints whether civil, cultural, economic, commitment to all aspects of human Universal Periodic Review: through stakeholder submissions political, or social—have equal identity, including sexual orientation Human Rights Council: through individual complaints as well as UPR submissions status, and cannot be ranked in and gender identity. Special Rapporteurs: through consultation and individual complaints hierarchical order. They are all National Human Rights Institutions: who can submit documentation to the inherent to the dignity of every Human Rights Council and other UN bodies. person and equally necessary. 44 45 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

The main focus in Principle 2, The Rights common to all Principles and made Discrimination on the basis of sexual Principle 2 echoes the comments of a to Equality and Non-Discrimination, relevant to each Principle as appropriate. orientation or gender identity includes number of the UN treaty bodies in its is on discrimination: its negative Fundamentally, the measures must any distinction, exclusion, restriction injunction to States to explicitly include impact on the realisation of rights, and encompass the following: or preference based on sexual sexual orientation and gender identity the obligation on States to counter orientation or gender identity which as a protected ground. In recent years discrimination in a comprehensive • All laws, policies, and procedures has the purpose or effect of nullifying a number of countries have done this, manner. of all organs of the State must be or impairing equality before the law or some by the introduction of new anti- consistent with a commitment to the equal protection of the law, or the discrimination or equality legislation and A number of groups in society experience preventing the abuse of the rights of recognition, enjoyment or exercise, on others by amending existing laws. discrimination on a daily basis because people of diverse sexual orientations an equal basis, of all human rights and of their race, their religion, their sex, their and gender identities; fundamental freedoms. The United Nations Human Rights age, and so on. Discrimination is manifest • The risks faced by people of diverse Committee has expressed concern at many levels in society, including at sexual orientations and gender This definition of discrimination is similar over the lack of laws prohibiting the personal, societal, and institutional identities in relation to the denial to that used in the Convention of the discrimination. For example, in its levels. Equality and anti-discrimination and abuse of their rights must be Elimination of All forms of Discrimination concluding observations in relation to legislation has evolved over recent years recognised and measures initiated against Women (CEDAW) and in the Hong Kong (China) in 1999, the Human to protect these groups by expressly listing by the State to protect against Covenant on the Elimination of Racial Rights Committee expressed its concern the grounds on which discrimination is those risks; Discrimination (ICERD). As such it will be at the lack of legislative protection from prohibited. The laws of many countries • When the rights of people of diverse familiar to law- and policy-makers, who discrimination on the basis of sexual include sexual orientation as a protected sexual orientations or gender should, therefore, be aware of what is orientation and called for its enactment ground; many more do not and only a identities are violated, the State, as involved in complying with this obligation. “in order to ensure full compliance very few include gender identity. The 1996 the duty-bearer, must have measures Clearly discrimination is multi-faceted and with Article 26 of the Covenant” (The constitution of the Republic of South Africa in place to make sure that the the task for the State is to determine what International Covenant on Civil and is the first to include sexual orientation violators—those who perpetrated the constitutes a “distinction” or “exclusion” Political Rights). as a protected ground and the 2009 abuse—are held legally accountable. and how to recognise “the effect of constitution of Bolivia is the first to include The State must also make sure that nullifying or impairing equality before The challenge of protecting the human gender identity as a protected ground. Fiji, there are systems in place to allow the law” for people of diverse sexual rights of everyone is to apply a consistent Ecuador, and also include sexual the aggrieved rights-holder to be orientations and gender identities. and inclusive approach to all. Thus orientation explicitly in their constitutional heard by a competent court or other when it comes to recognition before protections against discrimination. adjudicator and to be able to seek Enacting laws prohibiting discrimination the law, everyone is entitled to equal appropriate redress; only goes so far in creating an equal and unencumbered access. Stipulating Principle 2 states that people of diverse • The State must promote a culture playing field. Looking at how people of conditions that place more of a burden on sexual orientations and gender identities of respect for human rights. This diverse sexual orientations and gender one group than on another may amount are entitled to realise their rights on the is dealt with in more detail later in identities experience equality in relation to to a discriminatory practice. This is the same basis as everyone else and that this section. other populations in society is necessary to case for many transgender people who States are obligated to ensure that they understanding what other measures need face significant challenges at the level are enabled to do so and, critically, that Importantly, Principle 2 goes to some to be taken by States. This definition points of fundamental rights and in terms of they do not experience any particular length to specify what discrimination to that distinction and reinforces the need everyday life. impediment due to discrimination. To means for people of diverse sexual for States to consult with LGBTI groups and achieve this a comprehensive approach orientations and gender identities. It does their representatives so as to able to take by the State is mandated, including this by i) providing a general definition of account of their specific needs. legislation and policy change. These discrimination and ii) by detailing some legal and administrative measures are specific manifestations of discrimination. 46 47 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

Principle 3 of the Yogyakarta Principles, some transgender persons may want The Yogyakarta Principles on The Right to Life and The Right to Recognition before the surgery, many do not and others may Law, states that persons of diverse sexual want some surgery but not the full regime Security of the Person orientations and gender identities shall that is required. For those who do want enjoy legal capacity in all aspects of their surgery, there are difficulties of availability Main Principles: 4, 5 lives. The Principle enumerates some and affordability. conditions and situations that transgender As with all of the rights dealt with in the Yogyakarta Principles, people face in the struggle for legal In the last decade, some countries (the UK recognition of a change in their gender in 2004, in 2006, in 2009, the right to life is articulated in a number of treaties within the identity. As well as having to undergo a South Africa in 2009) have brought in UN system as well as in other regional treaties. The drafters of the range of medical procedures, people may laws allowing for legal change of gender also be hindered on the basis of their without the prerequisite of surgery or any Yogyakarta Principles were mindful of Article 4 of the American marital and parental status. other medical intervention. In February Convention, Article 14 of the African Charter and Article 2 of the 2009, the Austrian Administrative High European Convention on Human Rights. In the vast majority of countries where Court ruled that surgery was not a legal recognition of change of gender prerequisite for gender and . is available, it is contingent on gender The Federal Supreme Court in Germany reassignment surgery, sterilisation, and referred to the growing expert awareness Principle 4 of the Yogyakarta Principles In some instances killings are motivated hormonal treatment. Such requirements that the precondition of surgery for restates what is contained in these by hate. In other cases it is due to the clearly run counter to respect for the change of gender is no longer tenable. treaties, namely that everyone has the failure of the State or of the police to physical integrity of the person. While right to life. It goes on to state explicitly adequately protect LGBTI people, or a that people of diverse sexual orientations result of attacks by the police themselves, and gender identities have the right to and in still others it is because of the life, that they should not be deprived of imposition of the death penalty. Over life, nor subjected to violence because of seventy-five countries continue to regard their sexual orientation or gender identity. same-sex sexual activity as a crime, and An important statement within Principle 4, at least five specify the death penalty for just as within Article 6 of the International such activity. (For up-to-date information Covenant on Civil and Political Rights, on the status of laws, see ILGA’s world declares that where the death penalty is map at www.ilga.org.) still in place, it should only be used for the most serious crimes. International law also International and regional human rights states that same-sex sexual acts, even law states that the death penalty should where a national law prohibits them, do be used only in the case of serious not constitute a serious crime. Principle 4 crime. In their deliberations, monitoring clearly states this position and affirms that committees have reminded a number of no one should have to face the possibility countries of the necessity to comply with of a sentence of death on the basis of their legal obligation in this respect. their sexual orientation or gender identity. In a regional government used a court procedure to close the Rainbow The impact of laws that criminalise Solidarity and Cultural Association for , Gays, and Lesbians In many countries people of diverse or in other ways discriminate against (Gokkusagi Dernegi), a non-governmental organisation that advocates for sexual orientations and gender identities LGBTI rights, on the grounds that its establishment violated a prohibition in face the risk of being attacked and killed. people on the basis of sexual orientation Turkish law of organisations that are “against the laws and morality rules”. or gender identity is felt far beyond 48 49 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

those who are charged under the law homosexuality is technically not a crime in The Yogyakarta Principles on the Right to Privacy or who experience the discrimination , scores of men have been arrested directly. Being branded as a criminal can because of their perceived or actual have serious psychological effects on homosexuality. Once in prison they were Main Principle: 6 individuals. It can inhibit their freedom tortured—some of them tried for a variety and confidence to take their full place of crimes—convicted, and sentenced to The right to privacy is perhaps one that is most familiar to LGBTI in society, causing them to stay in the hard labour. activists as well as to the general population of LGBTI people closet, to stay away from social and cultural venues, to restrict their job and Even where anti-discrimination laws cover around the world. Individuals going to court and demanding educational choices, and even to keep a sexual orientation and gender identity, their right to privacy have obtained major advances in terms of distance from their families. In addition, law enforcement agencies in many parts such laws give license to view people of of the world often fail to treat seriously recognition of the rights of people of diverse sexual orientations diverse sexual orientations and gender crimes against people of diverse sexual and gender identities and overturned repressive laws. Many of identities negatively, to discriminate orientations and gender identities. These against them, to feel entitled to hate failures include poor investigation of these early legal cases took place within the European Court of them. and essentially to disregard their reported crimes, which in turn can result Human Rights. humanity. These impacts have been in failure to adequately prosecute the well documented and UN human rights case in court. Where such treatment mechanisms have brought them to the under the law is prevalent, it is difficult, if attention of States as a reminder of the not impossible, for LGBTI human rights consequences of discriminatory laws. defenders to operate. They are perceived When Jeffrey Dudgeon, a gay activist Principle 6 makes it clear that privacy For example the Special Rapporteur to be defending that which the law of the living in Northern Ireland, was arrested extends beyond what people do in on Extrajudicial, Summary or Arbitrary land criminalises and yet international law by the police and interrogated about his private, away from the public gaze. The Executions in an interim report to the UN clearly and unequivocally permits. sexual activities, he brought a case to the rationale put out by people who consider General Assembly issued this comment: European Court of Human Rights (ECtHR) themselves ‘tolerant’ of LGBTI people is Principle 5 deals with the obligation on claiming that his right to privacy and his familiar to many: ‘whatever people do [T]he continuing against states to protect its citizens against harm, right to be free from discrimination had in the privacy of their own bedrooms is members of sexual minorities and, whether inflicted by agents of the state been violated by his arrest. The Court their own business, so long as they keep especially, the criminalisation of matters or by private individuals or groups. This ruled in 1981 that his right to privacy had it to themselves.’ This argues more for of sexual orientation increase the social includes laws to outlaw discrimination and been infringed, but declined to decide his keeping LGBTI people in the closet rather stigmatisation of these persons. This harassment as well as laws that enforce discrimination claim. than for the protection of their right to in turn makes them more vulnerable appropriate criminal penalties for any privacy. Principle 6 recognises that when to violence and human rights abuses, manifestation of threat, incitement or The Dudgeon case was the first successful a government interferes with public including death threats and violations of actual physical violence directed against ruling in favour of LGBTI people from conduct, it may still be violating the right the right to life.... people of diverse sexual orientations and the ECtHR and has been referred to in to privacy if that conduct stems from an gender identities. It also includes the many other court proceedings and rulings intimate, personal decision. In some instances, laws that are unclear rigourous investigation and prosecution throughout the world. Most importantly have been interpreted to penalise people of violent crimes against LGBTI people. at the time, the law in Northern Ireland People who choose to use dress, speech, of diverse sexual orientations and gender Importantly, there is an obligation on that labeled homosexuality a crime was or mannerisms as ways of expressing identities. The application of the state to help prevent such crimes struck off the books. Since then many their gender should be free to do so in of the penal code in India is one example by combating the that often other countries have complied with their the public market, on the main streets, at (more details on this in the next section). underlie violence related to sexual international legal obligation by removing school, and in all other public spaces, as Another is the use of the law in Egypt orientation and gender identity. similarly repressive laws. much as in the privacy of their own home. to crackdown on homosexuals. While 50 51 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

Their right to privacy under the law means Principle 6 is a good example of the The Yogyakarta Principles on Treatment by the Police that they can make their own decisions notion that rights are dependent on about their bodies, including how they one another. To truly experience the and the Courts want to express their gender; it means right to privacy, one must be free from they are free to reject the gender roles discrimination. Part A of Principle 6 deals Main Principles: 7, 8, 9, 10 imposed by society and to choose their with the range of measures needed to Other Principles: 2, 17 own gender identities. It also means that ensure that everyone, including people disclosure of their gender identities is at of diverse sexual orientations and gender their own discretion and that documents identities can enjoy the right to privacy. Principles 7–10 of the Yogyakarta Principles address the rights have to reflect the person’s preferred Clearly, some of these measures must and entitlements due to LGBTI people in relation to the powers of gender identity. address discrimination by removing laws the police and the courts. Beginning with protection from violence and practices that actually do discriminate In 2002 the ECtHR issued its first ruling as well as and enforcing laws that and freedom from arbitrary arrest and detention, the rights cover on gender identity issues. The Court held make it a crime to discriminate against other issues such as the right to a fair trial and humane treatment that the UK violated Christine Goodwin’s people of diverse sexual orientations and right to privacy when it refused to gender identities. while in the prison system, including the right to be free from recognise her preferred gender. torture.

The Committee of Ministers of the in March 2010 issued Before and during arrest LGBTI people in an arbitrary fashion. the first intergovernmental agreement The 2002 report of the Working Group In many parts of the world, LGBTI people codifying the application of human on Arbitrary Detention warned against face the risk of arrest merely because of rights standards to the issue of gender using sexual orientation as the basis how they express their identity through identity, outlawing discrimination on the for arrest and in 2003 it reported it had dress or deportment. This difference is basis of gender identity and in particular received information that people were judged to be offensive and threatening, stating that States are obliged to ensure being arrested and imprisoned solely on and police can take it upon themselves trans people have access to appropriate the basis of their sexual orientation. All to arrest and detain those who appear documentation. of these circumstances constitute human not to conform. The risk of arbitrary rights violations on the basis of sexual arrest is also a possibility when other orientation or gender identity and are forms of expression are exercised (see expressly prohibited by the obligations The Yogyakarta Principles on Freedom underpinning Principle 7. of Conscience, Religion, Expression and Assembly on page 67). Often laws Within the system that are vaguely worded have been interpreted as criminalising LGBTI The basic procedures of informing The Chilean group Ovejas Negras experienced private media during behaviour and thus provide the police detainees of the reasons for arrest, and their national public awareness campaign, Un beso es un beso (A Kiss is a Kiss), with a basis for arrest. While specifically promptness in a judicial determination which aimed to normalise LGBTI couples and assert their right to be treated with these laws, such as those recently of the grounds for arrest, apply to LGBTI equal dignity in their relationships. Two major television channels refused to air the overturned by the courts in India and people as they do to every other person. ads and were not reprimanded by the State. However, the ensuing public debate Nepal (and discussed in the case studies These and other requirements are outlined served to raise the issue both in Chile and abroad. The need for such campaigns is in a set of guidelines, Principles for the apparent in the censorship they generally face, along with the power that the media section of this Guide), have been used to has in shaping public attitudes. prosecute same-sex sexual activity, they Protection of All Persons under Any Form have also been broadly applied against of Detention or Imprisonment, adopted 52 53 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

by the UN General Assembly in 1988. The marginalisation; they are often victims who during the process Rights (now the Human Rights Council) right to equality and non-discrimination, as of physical and , including of being admitted to prison was found that training manuals be clear that the expressed in Principle 2 of the Yogyakarta rape, and are exploited in other ways; if to be intersex. The prison authorities, prohibition of torture is absolute and that Principles, is invoked here. they are unwell, they may under-report concerned about the prisoner’s safety, personnel are bound to disobey an order their symptoms, and when they do seek were loath to place her with the general which would violate this prohibition. The Equal access to justice care, the treatments they require may be population and confined her instead for Committee against Torture in a General denied them. The Committee Against the duration of her 18-month sentence in Comment in January 2008 noted the Having equal access to justice, which Torture, in its concluding observations a maximum security isolation cell, causing particular risk of torture faced by people includes the right to a fair trial as with respect to Brazil, noted its concern her severe hardship. While an initial US of diverse sexual orientations and gender covered in Principle 8, is often denied about discriminatory practices toward Federal Judge ruled that the prisoner’s identities. The Committee advised that to those most vulnerable in society certain prisoners on the basis of sexual due process rights had been violated, this in order to ensure protection to minority who experience discrimination in many orientation, which placed these prisoners ruling was subsequently over-turned. groups, States Parties should ensure other aspects of their lives. Whether at a disadvantage in accessing already that acts of violence and abuse against they face charges or register complaints, limited essential services. In 2001 the members of minority groups should people of diverse sexual orientations Freedom from torture for all Special Rapporteur on torture and be fully prosecuted and punished. In a and gender identities often encounter The right to be free from torture applies other cruel, inhuman, or degrading 2009 Guidance Note on Refugee Claims the same prejudice and discriminatory to everyone, including, as stated in treatment or punishment issued a report Relating to Sexual Orientation and treatment inside the justice system. For Principle 10, to people of diverse sexual documenting that prisoners with gender Gender Identity, the United Nations High example, the Special Rapporteur on the orientations and gender identities. dysphoria were being denied treatment Commissioner for Refugees (UNHCR) independence of judges and lawyers Numerous monitoring bodies have such as hormone . noted that ”severe forms of family and reported to the Human Rights Council reiterated the universal applicability community violence, rape and other in 2007 that the of this right. In recommendations, the Prison authorities are charged with the forms of , particularly if had not applied the normal requirements Special Rapporteur on torture and other care of all prisoners within their facilities. occurring in detention settings, would fall of law to a group of men charged in cruel, inhuman, or degrading treatment Humane and dignified treatment within the definition of torture”. relation to homosexuality and obscenity. or punishment recommended in a 2002 necessitates training for personnel According to the law, four witnesses are report to the Commission on Human and it also, as Principle 9 points out, required to corroborate the charges, and means involving prisoners in decisions in this case no witnesses were called. The about where and how they should be men were convicted and sentenced to six detained so as to take account of their years’ imprisonment. sexual orientation and gender identity. Where conjugal visits are granted to Protection while in detention heterosexual prisoners, they should In February 2010 Pembe Hayat, Human Rights Watch (HRW), ILGA-Europe, and The Yogyakarta Principles, under be granted on an equal basis to all, IGLHRC wrote a letter to the Prime Minister of Turkey expressing concern over the Principles 9 and 10, cover the basic right regardless of the gender of the partner. recent murder of two transgender women, one in Istanbul and the other in Antalya. to be treated with respect and humanity Independent monitoring systems The letter draws attention to a pattern of violence against LGBTI people, which as well to be free from torture, cruelty, are needed and the involvement of includes the murder of at least eight transgender women in Turkey since November and other inhuman and degrading organisations working in the spheres of 2008. The letter also notes a 2009 European Commission Progress Report on treatment. In prison, people of diverse sexual orientation and gender identity is Turkey, which noted that the provisions of the Turkish Criminal Code on “public sexual orientations and gender identities crucial to ensuring that attention is paid exhibitionism” and “offences against public morality” are sometimes used to can be subjected to discriminatory to the needs of LGBTI detainees. discriminate against LGBT people. treatment from the prison personnel or fellow prisoners. They are likely be more Of particular interest in this regard is the (see www.hrw.org/en/news/2010/02/18/letter-turkish-government-violence-and- fearful, which will in turn compound their case of a prisoner in Wyoming in the murders-targeting-transgender-people) 54 55 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

The Yogyakarta Principles on Economic and Social Rights The right to work includes the right to situation is further exacerbated when they protection from unemployment. When are alone and unsupported by family and employment is not possible, LGBTI friends, leaving them especially vulnerable Main Principles: 12, 13, 14, 15 people are entitled to unemployment to prostitution. Other Principles: 2, 11 benefits and other forms of assistance to re-enter the labour market. These are Principle 14 specifically lists food, safe The Yogyakarta Principles deal with the full range of economic some of the range of benefits detailed drinking water, sanitation, and clothing in Principle 13; others include parental as components of an adequate standard and social rights as mandated in the International Covenant on leave, health insurance, family benefits, of living. Where the population is at risk Economic, Social, and Cultural Rights (ICESR). Here we are pensions, and supports in the event of of insufficient access to these, States talking about the right to the necessities of life—to food and water, the death of spouse or partner. must prioritise the provision of services to the most needy. As an example of this to housing and work, and to social security and welfare support as Often people who are unable to secure obligation, General Comments from the provided through public taxes. These are dealt with in Principles work find themselves at a heightened Committee on Economic and Social Rights risk of being exploited, which can lead have provided clarity in this area pointing 13–15. to their being sold or trafficked. Whether out the need to take deliberate, concrete for work or for sex, LGBTI people are and targeted steps in ensuring the right among the groups most vulnerable to all to water. In relation to food, there is an forms of exploitation, sale, and trafficking. obligation to ensure freedom from hunger When it comes to the provision of these of sexual orientation in a range of Principle 11 exhorts states to address the by enabling access to food that meets basic rights, account is taken of the State’s areas including social security, health, root causes and risk factors of exploitation, minimum essential nutritional requirements. ability to provide in terms of having the and education. which include discrimination in access to Housing has become a contested right for necessary financial resources. Basically, housing, accommodation, employment, LGBTI people internationally, warranting States are required to demonstrate that, Crucial to achieving the rights to an and social services. The 2004 report of the specific mention of the increased risk of where resources are limited, they are doing adequate standard of living and to housing Special Rapporteur on the Sale of Children, forced eviction and of LGBTI the best they can and are making steady is the right to work and to earn a living. Child Prostitution, and Child people. Both private and State actors progress toward full adequate provision. Principle 12 refers specifically to the right reported that transgender young people violate the right to adequate housing to decent work with favorable and just are among the most marginalised and for LGBTI people. Numerous reports However, when it comes to making sure working conditions. Employment law has vulnerable because of the degree of document State-endorsed evictions, that these rights are applied without been at the forefront of anti-discrimination discrimination they experience in housing, prohibitions on renting, and homelessness discrimination, there is an obligation law, with many countries prohibiting education, employment, and health. Their among LGBTI people as a result of to act immediately. LGBTI people are discrimination based on sexual orientation to be treated on an equal footing with and/or gender identity within employment, all others when it comes to social and before enacting broader anti-discrimination economic rights. As an example of one legislation in other sectors. However, Each of the human rights treaty-bodies periodically publishes General Comments (or, of the many declarations of this right, even where prohibited by law, in practice in the case of CEDAW, General Recommendations) intended to clarify the nature of the Committee on the Rights of discrimination by employers is still a regular the obligations outlined in the treaty. Addressed to States Parties, they are intended the Child, in its 2007 Concluding feature of the lives of LGBTI people. In to assist States on how best to comply with their obligations. They do not impose Observations on Slovakia, expressed addition, many LGBTI people may gain new obligations but rather serve to deepen the interpretation of the law. General concern that anti-discrimination and maintain employment only on the Comments can address thematic issues or the operation of the treaty body, as well legislation in that country did not protect condition that they conceal their sexual as the actual provisions of the treaty. General Comments are formulated based on people from discrimination on the basis orientation or gender identity. information gained from States Parties, independent reports and, where applicable, individual complaints. 56 57 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

being forced to leave their family home. Within international jurisprudence, The Yogyakarta Principles on Health Discrimination and prejudice against LGBTI discriminatory housing practices have not people restrict their rights to choose where been soundly prohibited. In Kozak v Poland and with whom to live. (2010), the European Court of Human Main Principles: 17, 18 Rights (ECtHR) ruled that the blanket Other Principles: 2, 3, 7, 9, 13 In a 2004 report Miloon Kothari, Special exclusion of same-sex relationships from Rapporteur on adequate housing as a the ability to claim property as a de facto The specific health needs and entitlements of LGBTI people component of the right to an adequate marital relationship, in order to protect the standard of living, classed sexual minorities traditional family, was not a proportionate and the corresponding State obligations are comprehensively among groups who require special differential treatment. In the case of Karner articulated in the Yogyakarta Principles. attention by the government in the area of v. Austria (2003), the ECtHR ruled in favour forced evictions. Because they are already of an applicant who had been evicted from socio-economically vulnerable and face a shared apartment after his partner, who multiple forms of discrimination, they owned the home, passed away. In both The Principles address sexual and obligated to facilitate competent suffer disproportionately the effects of cases, however, the court ruled only that rights, control treatment and support for gender forced eviction. In Mongolia, experiences the government had failed to give weighty over one’s own body, and health and reassignment. With few exceptions, such of the violation of the by enough reason for difference in treatment discrimination. For LGBTI people the right as Brazil and Cuba where it is provided lesbian couples are documented in a 2008 in order to protect the traditional family, to health can be violated through harmful free of charge, gender reassignment shadow report by a coalition of LGBTI leaving open the possibility that it would practices, failure to provide necessary procedures can be expensive, in many activists to the Committee on All Forms allow such differential treatment in future. services specific to diverse sexual cases prohibitively so. of Discrimination Against Women. One orientations and gender identities, or lesbian couple were evicted without notice discrimination that restricts access to the The Principles deal with the provision from a rented apartment in Ulaanbaatar highest possible quality health care. of health care for LGBTI people in when the landlord, who assumed they were specific situations. When in detention, cousins, let himself into the apartment early Fulfilling the right to health LGBTI people are entitled to adequate one morning and found them sleeping health care, appropriate to their sexual Principle 17, the Right to the Highest together in bed. Another lesbian couple orientation and/or gender identity. As Attainable Standard of Health, contains in Ulaanbaatar explains what this means to detailed in Principle 9 this includes access numerous State obligations that require their daily life, to reproductive health services, HIV/ positive action specific to LGBTI people. AIDS information and therapy, hormonal Broadly, the State is obligated to design We can’t be ourselves even in our own therapy, counselling, and gender- all facilities, goods, and services to home. We have to watch what we say reassignment treatments. In 2001, the meet the needs of people of all sexual in case our neighbours overhear us. We Special Rapporteur on the question of orientations and gender identities. have to hide all photos of ourselves as torture and other cruel, inhuman, or a couple and all our degrading treatment or punishment Principle 17 emphasises sexual and whenever the landlady comes around. reported that transgender assault victims reproductive rights and health. In 2004 We have to make up a spare bed to had received inadequate medical , Special Rapporteur at the time, look as if one of us sleeps in it. We treatment in public hospitals on grounds of reported that sexual and reproductive rarely have our lesbian friends come their gender identity. Where LGBTI people rights are often neglected or even around in case people in the building have been identified as victims of torture restricted in law and are crucial to gender become suspicious. It is a precarious or cruel, inhuman, or degrading treatment equality, as well as human and social existence, and we always live in fear or punishment, they are, Principle 10 development. States are specifically that someone will find out. 58 59 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

states, entitled to receive appropriate testing, confinement to a medical facility, identity are enumerated under Principle 3. The Principles also address discrimination medical and psychological support. or any other harmful practices, including According to former Special Rapporteur within the medical establishment, which involuntary participation in research and Paul Hunt (2004), one of the immediate can force people to forego necessary Control of personal health and other procedures such as treatment obligations under the right to health is that medical attention. To counter this, States for HIV/AIDS and other diseases. This States must respect a person’s freedom to are obligated to carry out education and includes judgments based on cultural or control his or her health and body, and this training within the health sector on best The Preamble of the Yogyakarta Principles stereotypical gender norms. prohibits forced sterilisation. practices when treating LGBTI people. notes the international recognition of Medical staff must treat patients and everyone’s right to There are no circumstances under which Health and discrimination their partners with respect, including medical procedures can be forced upon recognising partners as next of kin where decide freely and responsibly on The Yogyakarta Principles make causal a person or required by law. The freedom desired (Principle 17). States must also matters related to their sexuality, links between health and discrimination. of choice and of full, guarantee access to health insurance including sexual and reproductive It is vital, for example, that States are for any medical procedure or treatment without discrimination (Principle 13). In health, free from coercion, mindful of how discrimination can impact is articulated in Principle 17. The role the the additional recommendations, the discrimination, and violence. the health of LGBTI people and their principle of full, informed consent plays Principles urge medical professional This includes the freedom to access to health care. The right to health in respecting, protecting, and fulfilling organisations to review their practices choose whether or not to undergo cannot be guaranteed where there are the right to health was the subject of a and guidelines to promote the modification of bodily appearance laws prohibiting same-sex relationships, 2009 report by Anand Grover, Special implementation of the Principles. or function by medical, surgical or where there is a lack of protection of Rapporteur on the right of everyone to other means. sexual minorities against violence and the enjoyment of the highest attainable A person’s health status, including discrimination, or where young people are standard of physical and . diagnosis of HIV/AIDS, is a prohibited However, this choice is too often denied bullied and ostracised because of their The report discusses the need for laws and ground of discrimination in international to trans and intersex people. In many sexual orientation or gender identity. international instruments to account for the human rights law. The UN Working Group countries, gender identities differing from vulnerability of certain individuals whose on Arbitrary Detention (2003) reported that assigned at birth, or socially rejected In its General Comment No. 3 (2003) on rights are compromised due to power that in some countries homosexuals and gender expressions, are treated as mental HIV/AIDS and the rights of the child, the imbalances and structural inequalities. people suffering from AIDS are locked illnesses. The same is true of homosexuality Committee on the Rights of the Child The report references Principles 17 and up on the grounds that they represent a in some countries. According to Mauro notes that, 18 in pointing out the need for health- risk to society, thus violating their right Isaac Cabral, in a paper delivered at the care providers to adapt to the specific to freedom from arbitrary deprivation of expert workshop during the drafting of Discrimination is responsible for circumstances of lesbian, gay, bisexual, liberty. The introduction to the Principles the Principles, this “pathologisation of heightening the vulnerability of transgender, and intersex people. acknowledges that discrimination based difference” can result in the confinement children to HIV and AIDS…. Of on sexual orientation or gender identity of LGBTI people to psychiatric institutions, concern…is discrimination based The requirement of sterilisation as a is often compounded by discrimination where they may be subjected to aversion on sexual orientation. In the design condition for making changes in identity on other grounds including health status. techniques, including electroshock therapy, of HIV/AIDS-related strategies, and documents is synonymous with coercion Such discrimination can affect a person’s as a “cure” to this “illness”. in keeping with their obligations into unwanted medical procedures and employment, physical safety, and mobility. under the Convention, States Parties is prohibited by international law. The full In turn, discrimination based on health The Yogyakarta Principles make clear that must give careful consideration to implication of the violation is apparent status can have serious negative effects sexual orientation and gender identity prescribed gender norms within their when passport, voter registration, and on health, including inability to access should never be considered medical societies with a view to eliminating other documents relating to the exercise proper care. conditions to be cured, treated, or gender-based discrimination as these of basic rights are involved. Whether actual suppressed (Principle 18). Nor can they be norms impact on the vulnerability of or feared, the ramifications for people the basis for any physical or psychological both girls and boys to HIV/AIDS. exercising their right to change their 60 61 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

Additional Recommendations The Yogyakarta Principles on the Promotion of a There are two specific additional Human Rights Culture recommendations related to health. The World Health Organization and UNAIDS are exhorted to develop guidelines for Main: Principle 16, 27 health services to best respond to the Other: Principle 1, 2, 19, 28, 29 health needs of LGBTI persons. Medical organisations are among the professional The obligation of States to promote a human rights culture is organisations encouraged to review reiterated throughout the Yogyakarta Principles. Twelve of the practices and guidelines with a whole- hearted commitment to the promotion of 29 Principles expressly mention the need for the State to employ the Yogyakarta Principles in health care. training, education, and awareness-raising programmes.

In addition, all of the Principles speak cultural issues, not human rights issues, of the requirement to take all necessary and should therefore be addressed legislative, administrative, and other by individual States, rather than the measures to ensure the fulfillment of international human rights framework. rights, and this is understood to include education on human rights. Promoting Training and awareness raising a human rights culture is primarily The aim of training and awareness-raising about a concerted effort to proactively programmes is to promote and enhance and systematically create and foster an the full enjoyment of human rights by all environment that places the promotion (Principle 1) and to eliminate prejudicial of human rights at the centre of all facets or discriminatory attitudes (Principle 2). of the machinery of government. It is also General educational programmes should about making sure that individuals and combat the idea of the superiority of any organisations outside of government are sexual orientation, gender identity, or free to promote human rights and that gender expression over another (Principle human rights defenders are not silenced, 2) as well as the prejudices that underlie discriminated against, persecuted, or violence related to sexual orientation and limited in any way from exercising this gender identity (Principle 5). The United Nation’s Stamford Agreement, 2003 right (Principle 27). The obligation to educate and train is The Stamford Agreement on human rights based programming states that: The Yogyakarta Principles spell out how further directed to increase human rights • all development cooperation, policies and technical assistance should further States must promote a culture of respect awareness and to eliminate discriminatory the realisation of human rights for rights that recognises rights for LGBTI attitudes among service providers • human rights standards should guide development programming in all sectors people as human rights. Opponents including in the public sector, social at all times of rights for LGBTI people argue that • programming should both help States to meet their obligations and citizens housing and homelessness agencies, such matters constitute social and to claim their rights. teaching, and medical professionals. 62 63 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

Judges, legal professionals, law both teaching methods and curriculum Protections for human rights act without fear of reprisal, and in order enforcement and prison personnel content; by developing a human rights defenders to send a wider message. are targeted for awareness-raising aspect within the existing curriculum While the State has the responsibility to programmes in international human rights modules; or by adding a separate subject A 2007 summary of reports made to Hina promote awareness and understanding standards and the principles of equality module. Principle 16, The Right to Jilani, Special Rapporteur on human rights of human rights, civil society clearly and non-discrimination (Principle 8). Education, deals with the need to ensure defeners, emphasises the seriousness of takes the lead in this regard. Whether that educational methods, curricula, and human rights abuses targeted at LGBTI it is monitoring the State, documenting Law enforcement and prison personnel resources are used toward the objective of activists, and illustrates why it is necessary violations, providing immediate relief to require further training on arbitrary enhancing understanding of, and respect to define this category of abuses victims, organising rallies, writing letters, arrest and detention based on sexual for, diverse sexual orientations and gender separately. The summary covers reports advocating for better services, producing orientation and gender identity and on identities. This includes promoting respect from all regions and demonstrates that a newsletter, visiting those in detention, their responsibilities in handling for diverse family models. defenders of LGBTI rights have been or any one of a myriad other actions, the parades and other LGBTI gatherings in a role of LGBTI activists in promoting human way that protects the participants as well LGBTI NGOs are often engaged in threatened, had their houses and rights is immeasurable. In international as demonstrates the State’s commitment working with educational authorities in offices raided, they have been human rights law, such individuals and to human rights for all. developing guidelines and curricula. attacked, tortured, sexually abused, groups are referred to as human rights For LGBTI groups, promoting human tormented by regular death threats defenders and are designated as a group LGBTI groups who have expertise on the rights education can lead to important and even killed. A major concern is an who face particular risks due to the nature issues are often involved in the creation opportunities for collaborations with other almost complete lack of seriousness of their work. Principle 27 of the Yogyakarta and implementation of trainings. LGBTI NGOs. The ideals of equality and respect with which such cases are treated Principles deals with the right to promote groups and experts can also work as at the basis of LGBTI rights education by the concerned authorities. In human rights, including activities directed consultants to the government to develop link LGBTI issues with other human rights numerous cases, police or government toward the promotion and protection of training modules that ensure that the issues issues in theory and in practice. officials are the alleged perpetrators of the rights of persons of diverse sexual relevant to LGBTI people are appropriately violence and threats against defenders orientations and gender identities. and comprehensively addressed, whether General human rights education can also of LGBTI rights. In several of these in a broad human rights training or in be carried out through public awareness cases, the authorities have prohibited The work of human rights defenders on a training specific to LGBTI issues. The and media campaigns. Combating demonstrations, conferences and issues of sexual orientation and gender impact of this collaboration often goes stereotypes and dispelling myths is meetings, allegedly beaten up or even identity often challenges long-standing well beyond the training sessions and fundamental to changing attitudes, sexually abused these defenders of social structures, traditional practices, contributes to improved relationships and State-sponsored campaigns of LGBTI rights. or religious precepts that function to between the LGBTI community and those this type send a powerful message of justify human rights violations. Because agencies involved. its commitment to human rights. State In a social climate where those who of the public nature of rights activism, agencies, such as equality bodies or speak about rights are silenced and it can be seen as threatening to the Human rights in the education ombudsperson’s offices, have undertaken abused, there can be little expectation powers that be, as well as to some sectors system such campaigns to signal the introduction of respect for rights for LGBTI people in of society, and therefore places rights of new anti-discrimination legislation or everyday life. This can result in a lack of Education is a crucial tool for advancing defenders at increased risk of many of to combat some form of prejudice that hope amongst ordinary people seeking the ideals of human rights and for the same rights violations that occur is prevalent. Print and broadcast media change. Addressing the lack of concern combating prejudicial and discriminatory in the wider LGBTI community. The should be prevented through legislation by the authorities in the face of such attitudes. Human rights education can be correspondingly public nature of rights and regulation from fuelling hatred and human rights abuses is a major requisite incorporated into education systems in a violations of human rights defenders is discrimination against LGBTI people. to protecting human rights defenders number of ways: as an overall model for also noteworthy; the perpetrators often and promoting human rights. On page

64 65 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

74 of the Guide there is a discussion of The Yogyakarta Principles on Freedom of Conscience, the rights to effective remedy and the principle of accountability for perpetrators Religion, Expression, and Assembly of human rights violations. Main Principles: 19, 20, 21 Other actors in the promotion of Other Principles: 27, 16, 2, 1, 28, 29 human rights culture In the Additional Recommendations to The right to peaceful assembly and the right to freedom of the Yogyakarta Principles, international, expression, two of the most basic rights enshrined in international regional, and national human rights courts and bodies, NGOs, specific UN human rights law, are dealt with in Principles 19 and 20 of the bodies, professional and commercial Yogyakarta Principles. organisations, the media, and funders are urged to play their part in the promotion of human rights for LGBTI people.

While the LGBTI community around In terms of legislation this would mean the world has grown in confidence and enacting laws, where they do not strength in its efforts to exercise these already exist, that would prohibit such rights, opposition, discrimination, and discriminatory measures; and where laws harassment is encountered on many fronts. are in place, to make sure that the laws are enforced. Administrative measures would Principle 19 deals with many of the include taking steps within the relevant obstacles to freedom of expression that agencies to speed up the registration have arisen for both LGBTI individuals process and to remove any discriminatory and organisations. LGBTI organisations criteria and processes that place LGBTI can face a myriad of obstacles in their groups at a disadvantage. Instances such work: registration is often refused or as this call for training for personnel. delayed in unnecessary and unexplained bureaucracy; office premises are hard At an individual level, LGBTI people to secure; access to print and broadcast may experience a violation of their right media is denied; conference venues are to free expression due to censorship of hard to come by. These are the issues dress, deportment, bodily characteristics, that, under Principle 19, States are or choice of name. While name-calling obligated to address so as to ensure and harassment in public spaces is one that LGBTI groups are not discriminated level of abuse, many have been arrested In a social climate where those who speak about rights against in any of these processes. because their self-expression is deemed to be immoral and offensive. The Special are silenced and abused, there can be little expectation As with most of the Principles, the Rapporteur on the right to freedom of of respect for rights for LGBTI people in everyday methods specified by which the State is expression has reported on violations in life. This can result in a lack of hope amongst ordinary to fulfill its obligations are “legislative, this area experienced by LGBTI people administrative, and other measures.” on a number of occasions. One was people seeking change. 66 67 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

in relation to the Jamaican Forum of rights defenders, Hina Jilani, expressed When it comes to freedom of assembly, More recently, in October 2009, the Lesbians, All-Sexuals and Gays (JFLAG) concerns in 2007 that a new law on its the issues are perhaps most evident with Human Rights Committee expressed and the risk that group faced from public way through the parliament of Nigeria Pride parades. In many parts of the world, its concern about a range of rights authorities wanting to suppress their free would make it a crime to support the Pride parades are met with hostility and violations against LGBT people in , speech. Another relates to concern about rights of lesbian and gay people and that opposition from society at large, from including harassment, assaults, systematic the possible link between a complaint this, and similar restrictions in the new church leaders and from government. discrimination, intolerance, and prejudice made by the Blue Diamond Society in legislation, would seriously impinge on Marches are banned; politicians abuse by public officials, religious leaders, Nepal about the alleged rape by police freedom of expression. their parliamentary privilege in their use and the media. Noting the absence of of four transgender women, and the of inflammatory language; participants legislation prohibiting discrimination arrest of thirty-nine transgender women. Principle 21 is important for its articulation face threatened and actual homophobic on the basis of sexual orientation, the Meanwhile the Special Rapporteur on of the obligation of States to ensure violence from extremists among the Committee also drew attention to the the promotion and protection of the right that matters of conscience and religious bystanders; and very often the police infringement of the right to freedom to freedom of opinion and expression beliefs are not used as an excuse to fail to protect Pride participants and of assembly and association. Among reported in 2002 on a law that mandated discriminate against LGBTI people. may decide arbitrarily to break up its recommendations to Russia, the a prison sentence of up to fifteen days for This could apply to discrimination in peaceful demonstrations. Committee directed the State to take wearing clothes of the opposite sex. employment on the basis of sexual all measures necessary to guarantee States are also required to ensure that orientation or gender identity by Principle 20 is clear that the peaceful the right to peaceful association and the rights of people of diverse sexual religious-run organisations that are in assembly of LGBTI people is to be assembly for the LGBTI community. orientations and gender identities are receipt of state funding. Principle 21 also protected by all means at the State’s not violated through others in society draws attention to the right to hold and disposal. It deals with any attempt on Where Pride parades have become exercising their right to free expression. practice beliefs free from interference or the part of the State itself to impede the contentious, training for police forces Some countries have tackled this situation fear of the imposition of other beliefs. exercise of this right and exhorts the State has often proved effective, not only in by introducing legislation. The LGBTI people are entitled to enjoy this to guard against notions of public order, protecting LGBTI people from violence Special Representative of the Secretary- right on the same basis as everyone else health, morality, or security being used from hostile bystanders, but also in General on the situation of human in society. as excuses. Often such arguments are demonstrating to the public that such used to hide the real reason for denial violence is not tolerated by the State and of equal protection, which is simply that the State is committed to freedom of opposition to any affirmation of diverse expression and assembly for all, including In March 2010, the Regional Police of East withdrew the permit it had previously sexual orientations and gender identities. for people of diverse sexual orientations granted to ILGA-ASIA (The Asian Regional branch of the International Lesbian, Gay, In 2007, the European Court of Human and gender identities. Bisexual, Trans and Intersex Association) for its conference. The conference, the fourth of Rights ruled that the organisers of a Pride its kind, was due to be held in , Indonesia. It was reported that local police had parade had been denied their right to Linked to protecting the rights to freedom said that the LGBTI people attending the conference were prone to making trouble and freedom of peaceful assembly when of expression and assembly is the disturbing the peace. The deputy-mayor of Surabaya, the local branch of a major political the mayor of banned the march obligation to promote a culture of human party and the Minister of Religious Affairs also voiced their oppossition to the conference, because of the group’s failure to produce a rights, which includes protecting human claiming that the city of Surabaya was a religious city and that a conference of this kind traffic organisation plan. Such criteria had rights advocates and defenders. Many did not fit in with the culture and religion of the people. ILGA-ASIA reported that the not been applied to other groups whose of the gatherings of LGBTI people have Minister of Religious affairs threatened to proescute the organisers of the conference on events took place on the same day. The a clear objective to promote rights for the basis that the conference represented an afront to religion. relevance of Principle 2 is evident here in LGBTI people. As such, the protection of the application of a non-discriminatory human rights defenders comes into play, ILGA-ASIA believes that its right to freedom of assembly, as articulated in Principle 20, has approach toward the LGBTI group. alongside the protection of free speech been violated and has written to the National Commission on Human Rights to investigate and assembly. the matter and to take appropriate action against those agencies responsible. 68 69 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

Clearly a State that works systematically The Yogyakarta Principles on Asylum to build a culture—within the organs of government and within society at large— that promotes respect for human rights Main Principles: 23 will be better equipped to accommodate Other Principles: 4, 10, 7 diversity. In this respect, the Yogyakarta Principles are an invaluable tool for policy Principle 23 deals expressly with the right of people of diverse makers in the reformulation of policies to reflect their commitment to rights for sexual orientations and gender identities to seek asylum. States are LGBTI people. obligated to ensure through legislation that a well-founded fear of persecution on the basis of sexual orientation or gender identity is Likewise Principles 28 and 29 have a bearing on the exercise of these rights, accepted as a ground for the recognition of refugee status. in that when denied a permit to hold a , or refused an article in a State-sponsored newspaper, there must be mechanisms in place to allow individuals to appeal such decisions, as Some countries have included specific Freedom from Torture and Cruel, Inhuman well as processes through which the State references to sexual orientation in or Degrading Treatment or Punishment publicly sets out its reasons for taking the the definition of refugee in domestic are applicable in these circumstances. actions it takes and allows those decisions legislation, such as in the Swedish to be questioned. Refugee Act. Others conform by including The grounds for claiming refugee and sexual orientation or gender identity asylum status are set out in the 1951 under the grounds of membership of a Convention Relating to the Status of particular social group. Some countries Refugees. Claims made by people on the that systematically recognise asylum basis of sexual orientation and gender for LGBTI people are Australia, Austria, identity have been legitimised in line Belgium, , Finland, Germany, with their status as members of Greece, Ireland, Netherlands, New a particular social group. A 2002 Zealand, Norway, South Africa, and the publication by the United Nations High United Kingdom. , France, and Commissioner for Refugees (UNHCR) the United States, among others, have acknowledged that where claims for recognised LGBTI people for asylum on a refugee status are based on persecution few occasions. because of sexual orientation, a gender element is involved. Most commonly, Principle 23 also covers extradition and according to that publication, these other situations where a person may face claims are from “homosexuals, removal to , signaling transsexuals, or transvestites” and the need to take account of their fear of come on foot of extreme hostility or torture, persecution, or other similar cruel discrimination experienced over a treatment in that country. Clearly Principle sustained period of time. 7, Freedom from Arbitrary Deprivation of Liberty, and Principle 10, The Right to 70 71 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

Principle 23 also requires that asylum- The Guidance makes it clear that the and who then ‘come out’ in the country seekers are not discriminated against abusive, hostile, and discriminatory of asylum. People in this circumstance in law or in practice because of sexual practices experienced because of sexual could qualify for refugee status if they orientation or gender identity. The orientation and gender identity can can demonstrate a well-founded fear recently-lifted 22-year ban amount to persecution. A wide range of future persecution. barring anyone with HIV/AIDS from of circumstances are listed, including entering the United States demonstrates forced marriage (either as arranged by It has been established, as discussed a discriminatory immigration policy thinly family or due to social pressure), physical elsewhere in this Guide, that people of veiled in public health concerns. There and , arbitrary arrest diverse sexual orientations and gender are still just under a dozen countries with and detention, medical abuse, threat of identities are not everywhere secure of similar bans. execution, or honour killing. certain basic human rights, including the right to life, often because of laws Additional Recommendation G of LGBTI asylum-seekers often have limited or practices of the State. This can the Principles urges The UN High evidence to establish their LGBTI identity, amount to persecution. Commissioner for Refugees (UNHCR) to and this challenge is dealt with in the ”integrate these Principles in efforts to Guidance. Where an action that has been protect persons who experience, or have initiated or is condoned by the State a well-founded fear of, persecution on forces someone to forsake or conceal the basis of sexual orientation or gender one’s sexual orientation and/or gender identity, and ensure that no person is identity, this could constitute persecution. discriminated against on the basis of Forced concealment violates a number sexual orientation or gender identity in of rights, including the right to freedom relation to the receipt of humanitarian of expression (Principle 19), the right to assistance or other services, or the the universal enjoyment of human rights determination of refugee status”. (Principle 1), and the right to equality and non-discrimination (Principle 2). The UNHCR would appear to have responded to that recommendation with The UNHCR Guidance deals with the the publication in 2009 of its Guidance possibility of people having left their Note on Refugee Claims Relating to countries of origin for a reason other than Sexual Orientation and Gender Identity. their sexual orientation or gender identity

Additional Recommendation G of the Yogyakarta Principles recommends that:

The UN High Commissioner for Refugees integrate these Principles in efforts to protect persons who experience, or have a well-founded fear of, persecution on the basis of sexual orientation or gender identity, and ensure that no person is discriminated against on the basis of sexual orientation or gender identity in relation to the receipt of humanitarian assistance or other services, or the determination of refugee status. 72 73 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

The Yogyakarta Principles on Effective Remedies programmes would help to minimise the need for redress systems by helping and Redress, and Accountability to prevent discriminatory actions.

Main Principles: 28, 29 The interdependence of the Principles Other Principles: 27, 2, 1 is once again evident. Principle 29 speaks about ensuring the elimination of discrimination on the basis of sexual Full redress, as outlined in Principle 28 of the Yogyakarta orientation and gender identity. All of the Principles, includes restitution, compensation, rehabilitation, other 28 Principles in some way speak satisfaction, guarantee against recurrence, and any other to this overall goal. And accountability, articulated in Principle 29, is necessary means appropriate. to enable the State—and all other stakeholders—to monitor its progress and measure its commitment.

The breadth and inclusivity of the means and international NGOs serve this by which a victim of a human rights abuse function; Principles 28 and 29 point can seek redress reflects the robustness to what the State is required to do in required of the judicial system. Such this regard, whether through the office means of redress should be available to of Ombudsperson, Human Rights all, including people of diverse sexual Commission, or the judiciary. orientations and gender identities. Where States have such systems in place, they Redress cannot be obtained if those have to ensure that they are enforced responsible for violating the human rights and effective, and that they are actively of people of diverse sexual orientations applied and available to people of diverse and gender identities cannot be held sexual orientations and gender identities. accountable because they are protected or shielded in any way. On a basic level, An element of the overall system of this will mean that when LGBTI people redress that is generally recognised report a crime, a prompt and thorough as standard practice is the facility to investigation is started. If there is evidence independently monitor how reports for a legal case, those responsible should of rights violations are handled by the be prosecuted and, if found guilty, State. This kind of scrutiny is necessary punished according to the law. for a number of reasons: to encourage Redress cannot be obtained if those responsible for violating public trust in the system, to make Principle 28 draws attention to the the human rights of people of diverse sexual orientations sure that vulnerable groups, such as crucial importance of awareness-raising and gender identities cannot be held accountable because LGBTI people, have equal access to programmes targeted at many sectors the system (including, where necessary, of society as part of an agenda of they are protected or shielded in any way. On a basic level, free legal aid), and to make sure the promoting respect for human rights this will mean that when LGBTI people report a crime, State is held accountable. Many national and appreciation of diversity. Such a prompt and thorough investigation is started. 74 75 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

The Yogyakarta Principles on Children away from the other parent and the home Health and put in the custody of biological Once again the obligations to keep the relatives. In the case of separation, the best interests of the child uppermost and Main Principles: 16, 24 non-biological parent may be denied to involve children in decisions concerning Other Principles: 11, 13, 14, 18 visitation rights with the child. The rights them are stressed in Principle 18, which of children to their parents may be deals with protection from medical abuses. restricted in various ways when a parent The Yogyakarta principles apply as fully to children as to adults. For intersex children, perhaps the most undergoes gender reassignment. In the basic violation of rights is un-consented- The Preamble to the Principles echoes the provisions of the Czech Republic, for example, a parent to genital surgery. Children have the right may be forced to give up parental rights Convention on the Rights of the Child in emphasising two tenets to the power of full, free, and informed to undergo gender reassignment, central to the Convention. consent in any such procedures, in or may have their parental rights accordance with the age and maturity of automatically restricted. the child. This means that to the extent possible, the child must be consulted Even where no legal recognition of same- and allowed to make a choice. States sex relationships exists, in order to meet First, children have the right to express a family may mean having equal access to are obligated to establish protection the rights of the child, the State must, at their views and to have their views given adoption services or assisted procreation mechanisms specific to children to ensure a minimum, ensure that the best interests due weight in decisions concerning them. technologies. The rights of children are that no child is at risk of, or subject to, and, where appropriate, the opinion Second, in any situation that involves also central to the right to found a family, any form of medical abuse. The Special of the child are taken into account in children, the best interests of the child and Principle 24 echoes the Preamble in Rapporteur on Health in a 2009 report decisions concerning the child. Measures must be the primary and overriding stressing the need to involve children in dealing with the issue of informed consent, must be in place to ensure that children consideration. decisions that concern them and to take says that health care providers should do do not suffer as a result of discriminatory account of the best interests of the child. everything they can to postpone intersex measures when it comes to social security The Yogyakarta Principles address LGBTI genital surgery until the child is mature and welfare benefits, which could be children as autonomous individuals, Children often face discrimination on enough to give informed consent. He especially at risk where same-sex unions stressing the particular vulnerabilities the basis of the sexual orientation or notes that some research indicates that the are not recognised by the State. these children can experience and the gender identity of a family member. For procedure is painful, high-risk, and has no additional barriers to rights fulfillment instance, children have no legal rights proven medical benefits. they can face. The Principles also address to a non-biological parent where their children as part of a family unit with LGBTI parents are in a same-sex relationship. members, recognising the very real effects Only a few countries allow the adoption of discrimination sometimes directed at of a same-sex partner’s child (Denmark, children because of their association with Germany, , Norway, and some parts others. Particular rights and obligations of Australia, Canada, and United States). towards children are enumerated in the This leaves children of LGBTI parents at realms of family, health, housing, a disadvantage relative to children of Principle 16 deals with all the protections due to LGBTI and education. heterosexual parents. students and to students whose family includes LGBTI Family Problems can occur when a parental people. These include not having to face disciplinary relationship ends by death or separation. For people of diverse sexual orientations action solely for expressing one’s sexual orientation or If the biological parent of a child dies, and gender identities, the right to found gender identity, as well as protection against violence, there is a risk that the child will be taken bullying, and harassment by staff or other students. 76 77 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

The decisions of the Constitutional In 2001, the Special Rapporteur on schools include the child in any decisions among LGBTI youth in countries all Court of Colombia in three cases in the the Right to Education, Katarina meant to remedy the situation, consider over the world due to the violence and relating to surgery on intersex Tomaševski reported progress on the child’s best interests, and ensure discrimination they encounter in their children are noteworthy. As a result of equal access to education: that the protection of students at risk homes, communities, and schools. the first case the Court introduced a of violence is not achieved through Principle 15 addresses the State’s blanket moratorium on such surgeries. Domestic courts have started to marginalisation or segregation. obligation to establish social programmes The decision in the third case, however, recognise that children themselves to tackle underlying conditions established a more balanced approach have standing to vindicate their The right to education also requires contributing to homelessness. by introducing a heightened informed right to education and rights in curricula to promote respect for and consent test. This means that parents education. The Supreme Court of understanding of diverse sexual have to give a fully informed consent Colombia examined a complaint by orientations and gender identities as repeatedly in writing over a period of two boys who had been prevented well as human rights in general. Schools time before such medical interventions for from continuing their education by can provide models for practicing and intersex children can be considered legal attending evening classes…because of experiencing human rights ideals like in that country. their homosexuality. The Court faulted equality, empowerment, and respect for the school for having failed to exhibit diversity. Validation by authority figures Education the values of tolerance and respect for and peers at school of a child’s , adding that a public school orientation or gender identity, or their Within the context of the right to which posits that ”homosexuality is family structure and family members, is education, as articulated in Principle sinful” excludes potential learners. crucial to a child’s development. If children 16, the development of a culture of are accepted as who they are, then they understanding and respect for diverse She further reported that in most are likely to do the same for others as they sexual orientations and gender identities countries children who do not conform to mature. The development of attitudes and should be a goal of the educational accepted gender norms experience abuse behaviours that respect diversity is crucial system. The importance of such a culture and discrimination by school officials and to promoting a culture of human rights in clearly has a particular relevance for bullying by other students. The result, for society, which is discussed elsewhere in this children who are LGBTI, or who have a many children whose gender identity or Guide on page 63. family member who is LGBTI. gender expression does not conform, is a The Yogyakarta Principles recognise basic violation of the right to education. both the importance of the school Housing Such abuses lead to serious mental and environment to the safety and Principle 15, the Right to Adequate physical harm and to early school leaving. development of the individual, as well Housing, recognises the increased as the power of education in forming vulnerability to homelessness for children Principle 16 deals with all the protections life-long attitudes and practices. Equal and young people because of their due to LGBTI students and to students access to the educational system, as well sexual orientation or gender identity. whose family includes LGBTI people. as equal treatment within the system, to family can result in These include not having to face are essential elements of the right to rejection, expulsion from the home, and disciplinary action solely for expressing education (Principle 16). In addition, in introduction into . In 2004 Juan one’s sexual orientation or gender identity, line with the broad goals of education, Miguel Petit, Special Rapporteur on as well as protection against violence, the developmental needs of all children, the Sale of Children, Child Prostitution, bullying, and harassment by staff or other including those of diverse sexual and Child Pornography documented students. It goes further to prescribe orientations and gender identities, increased incidence of homelessness, to schools measures for handling such must be met. poverty, and sexual exploitation instances when they do arise, by requiring 78 79 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

The Yogyakarta Principles on Families The rights and recognition of LGBTI The Principles also acknowledge that partners are further referred to in family is not always a benign force in a specific instances. Principle 9, The person’s life. The obligations of States Main Principles: 13, 24 Right to Treatment with Humanity while to protect persons from human rights Other Principles: 11, 15, 17, 24 in Detention, requires States to grant violations, therefore, extend to the realm conjugal visits, where permitted, on an of the family. In Principle 3, the Right The rights and entitlements applicable to LGBTI families are equal basis to all prisoners and detainees, to Security of the Person, States must regardless of the gender of their partner. impose appropriate criminal penalties for contained in a number of Principles, the most apparent of which is In Principle 17, The Right to the Highest violence, threats, or harassment based Principle 24, The Right to Found a Family. While international law Attainable Standard of Health, States are on sexual orientation or gender identity has so far not provided a definition of family, it does acknowledge, obligated to ensure that all health service in all spheres of life, including within providers treat clients and their partners the family. The Yogyakarta Principles as stated in Principle 24, that families exist in diverse forms. In a without discrimination, including with identify rejection by families or cultural 1990 General Comment on Article 23 of the ICCPR, the Right to regard to recognition as next of kin. communities as a risk factor in all forms of exploitation, including sexual exploitation Found a Family, the Human Rights Committee noted “the concept Principle 15, the Right to Adequate and trafficking in Principle 11 and of the family may differ in some respects from State to State, and Housing, requires States to provide homelessness and domestic violence in services without discrimination on the Principle 15. Principle 24 also recognises even from region to region”. basis of sexual orientation, gender the freedom to choose not to marry or identity, or marital or family status. Even found a family and the freedom from where the registration of a same-sex coercion to do so. relationship is legally unavailable, it is still prohibited to discriminate because of this Trans people face particular barriers in Crucial to the right to found a family is status. Unlawful forced eviction is often relation to the right to family. Where the right to parent children. For LGBTI the outcome of discrimination. change of gender identity is permitted, people this may mean the right to adopt the obligation to undergo sterilisation or to have access to assisted procreation The right to equal treatment and results in that person’s ongoing right to technologies. Being afforded the benefits protection from discrimination is as far found a family being severely curtailed. of the States granted to families is a as the Principles go regarding LGBTI Even in relation to existing children, many right of LGBTI parents and Principle 24 relationships so that any entitlement, countries have restrictions, including covers a number of these, including social privilege, obligation, or benefit available requiring the trans person to wait until welfare, public benefits, employment, to different-sex unmarried partners the children have reached a certain age and immigration rights. These rights must also accrue to unmarried same- before applying for gender identity and benefits should apply even if the sex partners. Where States choose change. Still many more countries State does not provide any legal same- to recognise same-sex marriages or mandate divorce, thus effectively breaking sex partnership registration facility. registered partnerships, different-sex up the family unit. Where civil partnership Similar guarantees of rights in relation and same-sex couples must be treated arrangements exist for same sex couples, to protection against discrimination are equally within those institutions. While divorce is required before the same-sex addressed in Principle 13 dealing with international human rights law does partnership can be legally registered. social security and in Principle 16 dealing provide for the universal and equal Some countries prevent trans people from with education. enjoyment of human rights including marrying in their new gender altogether. the right to marry, the law is not read to guarantee same-sex marriage. 80 81 Section 2 The Yogyakarta Principles Up Close Section 2 The Yogyakarta Principles Up Close

The Yogyakarta Principles Additional Recommendations the Principles into the implementation mandate. Recommendation H is of their respective mandates; that the addressed to these organisations. Sixteen Additional Recommendations complete the Yogyakarta Economic and Social Council grant Individually and collectively, these accreditation to NGOs whose focus is organisations interact with a vast array of Principles. The one sentence introduction to this section is a rights for LGBTI people; that the World governments and agencies in the work reminder that the responsibility for protecting and promoting Health Organization (WHO) and UNAIDS they do, and they reach many millions of develop guidelines for the delivery of people. The promotion of the Yogyakarta human rights rests not only with national governments. appropriate care in relation to people of Principles by these organisations could diverse sexual orientation and gender prove enormously influential and effective. identity and that the High Commissioner for Refugees integrate the Principles in The Additional Recommendations also Indeed, the responsibility on all of us to relation to its ability to galvanise relevant the work to protect and provide assistance target private sector organisations. respect the dignity of all human beings stakeholders. It is encouraging to note to those who seek refugee status because Recommendation M urges professional is integral to the concept of rights for all that at the launch of the Principles in of persecution on the basis of sexual organisations in the medical, criminal and to the implementation of international 2007, the then UNHCHR, Louise Arbour, orientation or gender identity. or civil justice, and educational sectors human rights law. described them as a welcome reminder to review their practices and guidelines of the basic tenets of universality and The Treaty Bodies are exhorted to in light of the Yogyakarta Principles. Seven of the Additional non-discrimination. ‘vigorously’ integrate the Principles both Commercial organisations, as employers Recommendations—listed A to P—are in their case law and in the examination and producers of goods and services, have addressed to United Nations entities The Recommendations similarly exhort of State reports and to adopt General a position of influence. Recommendation and the remainder to a range of the UN Human Rights Council (HRC) to Comments on the application of human N asks them to acknowledge that position bodies, including inter-governmental endorse the Yogyakarta Principles and to rights law to persons of diverse sexual and to exercise their important role to organisations, non-governmental give “substantive consideration to human orientations and gender identities. promote the Principles both nationally and organisations, and professional and rights violations based on sexual orientation The tenor of this recommendation internationally. Lastly among this group are commercial associations, as well as the and gender identity”. This is of paramount demonstrates the importance of the work the mass media, and the Recommendations media and funders. The general thrust importance, for, while many of the offices, of the Treaty Bodies. address the need to promote tolerance and of the Recommendations is toward the experts, and agencies within the UN are acceptance of diversity of sexual orientation endorsement, integration, and promotion engaging more and more in this area, the Intergovernmental organisations (IGOs) and gender identity while avoiding the use of the Yogyakarta Principles so that the HRC has the power to effect meaningful have a number of important functions of stereotypes. work of these organisations is better change within the entire UN system. that can have a positive impact on oriented toward respect for the rights of A number of States have responded the promotion of human rights. They The final Recommendation is addressed LGBTI people. positively to the Principles; shortly after provide a forum for discussion and for the to funders—both governmental and their launch in Geneva, 30 States made dissemination of information, and they private—and urges them to provide The Recommendation to the UN positive interventions in relation to sexual enhance transparency and encourage financial assistance to NGOs working in High Commissioner for Human Rights orientation and gender identity, with seven good governance. Some IGOs—such the area of human rights for people of (UNHCHR) has three elements to it: to States specifically citing the Yogyakarta as the Organisation for American States diverse sexual orientations and gender endorse the Principles, to promote their Principles. The 2008 Declaration on sexual (OAS), the (AU), and identities. As mentioned a number of implementation, and to integrate the orientation, discussed on page 34 of this the Council of Europe (CoE)—have times in this Guide, activists, whether Principles into the work of the Office Guide, is an encouragement that progress parliaments, human rights treaty bodies, within NGOs or other structures, are at of the High Commissioner for Human is being made. courts, and other mechanisms, while the forefront of the work to promote the Rights (OHCHR). This is a comprehensive others, such as the Asian Development implementation of human rights. Without recommendation and as such points Other recommendations to UN bodies Bank and the African Development Bank, adequate financial assistance, their work to the importance of the OHCHR in include that Special Procedures integrate are organised around a development is restricted. 82 83 SectionSection 1 3 TheThe Yogyakarta Yogyakarta Principles - Overview Principles and Context In Action

85 Section 3 The Yogyakarta Principles in Action Section 3 The Yogyakarta Principles in Action

The case studies are organised into five Build a movement by equipping LGBTI These sixteen case studies illustrate categories that demonstrate how the people with knowledge about their applications of the Principles. In most cases, Principles have been used to: rights under international human rights standards in opposition to curative rape in activists have used the Yogyakarta Principles Challenge oppressive legal standards South Africa and providing human rights by bringing litigation in India against the training for lesbians and transgender as an extra tool to enhance the effectiveness law, making a court challenge in women in Lebanon. Nepal to address systemic discrimination of their goals. These are stories of activists against LGBTI people, demanding that government officials eliminate a claiming rights, holding duty-bearers to requirement in the Netherlands that an individual be sterilised in order to change account, and affirming and defending the gender identity, and seeking a change in the Chinese medical community to values that underlie the Principles. depathologise homosexuality.

Develop new government policy in Brazil in the course of formulating national strategy for LGBTI issues, in Belize when addressing health concerns of men who have sex with men, at the foreign policy level when Sweden implemented an LGBTI programme, and at the municipal level in Bogota, Columbia when activists coordinated their advocacy around city- wide activities.

Seek a more responsive government by increasing the capacity of the national human rights institution in New Zealand and sensitising and training healthcare practitioners in Chile.

Educate the public about international legal standards that prohibit the dismissal of teachers because of sexual orientation and gender identity in Guyana, the rights of transgender people in India, and the historical basis for international human rights for LGBTI people in Poland.

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Challenging oppressive legal standards Blue Diamond Society (Bds), health care, or vote. Authorities usually deny metis their citizenship cards, telling Nepal them that they do not look like their given name or do not fit the ‘male’ or ‘female’ Many LGBTI groups mount challenges to oppressive legal The Context categories, or that they will be given a card standards. These challenges come in the form of litigation, The Right to Recognition before the only if they accept the State’s designation that they are “male”. The result is literally lobbying to overturn unfair laws, , efforts to change Law (Principle 3) has been an issue for many groups in Nepal, not just LGBTI to disenfranchise most metis, and to political leadership, and an endless number of other tactics. people. Oppressive legal standards in strip them of the ability to perform many Every successful legal challenge brought to the high court Nepal have been a barrier to individuals everyday functions in society that ordinary in certain groups obtaining full and Nepalis take for granted. This creates of any country since 2005 has involved some reference to the equal recognition, citizenship, access an environment where metis are seen as Yogyakarta Principles. As these case studies show, the Principles to employment and health care, and outside the law, and are easy victims for participation in government, among police harassment and abuse, as well as serve as a way to communicate an entire body of law to a judge, other things. In the transition from a Royal pervasive social discrimination. elected official, or government employee. Parliamentary system to a government led by a secular assembly, Nepal considered Other LGBTI people are also discriminated early submissions to the drafting process of against in many areas of life in Nepal. the Interim Constitution calling for better The term ”third sex” has been used by treatment and representation for many of some in Nepal and other parts of South the population and a new vision of equality Asia to denote all sections of the LGBTI in Nepalese society: affirmative action for community. Societal and institutional dalits, more women in government, and attitudes toward, and treatment of metis anti-discrimination protection for sexual are, in some measure, directed toward all minorities. One of the groups most on the so-called sexual minorities. fringes of Nepalese society is transgender women, known in Nepal as metis. The The Action abuse and violence, arbitrary arrests, and Blue Diamond Society (www.bds. torture targeted against the metis has org.np) is the leading organisation in been well documented and reported upon, Nepal working on behalf of the LGBTI both locally in Nepal and internationally community, with a strong focus on by International Human Rights NGOs and supporting HIV/AIDS and STI prevention the media. and education. Over many years, an important part of BDS’s work focused on In addition to protection from violence, trying to draw domestic and international metis are also denied basic civil rights, in attention to individual cases where that they are regularly refused access to a people, particularly metis¸ were subjected Citizenship Card. This document, granted to human rights violations. BDS exposed to all men and women on reaching the age the Police practice of arbitrary arrests of of majority, entitles citizens to passports, metis and the inhuman conditions in jail, residential rights, and other privileges. including beatings and rape. During the Without such identification people often violent period of Nepal’s civil war, such cannot rent rooms, get a job, access incidents increased and police in major 88 89 Section 3 The Yogyakarta Principles in Action Section 3 The Yogyakarta Principles in Action

cities enjoyed virtual impunity to harass • The Court was initially completely The Court ordered the Government of discrimination. The Court cited the and persecute people they did not like. unfamiliar with the language of Nepal to provide all necessary documents Yogyakarta Principles (translated for “sexual orientation,” much less to recognise the gender identity of ”third the Court into Nepali) when it quoted BDS filed a petition on the Supreme “gender identity”. gender” people, including citizenship from the Preamble as evidence of the Court of Nepal on April 18, 2007; it • International and domestic legal cards, passports, voter ID cards, and other discrimination and ill treatment meted out contained three broad demands: precedents around the world have papers. It also ordered the Government to to people of diverse sexual orientations paid much less attention to issues take necessary measures, including specific and gender identities. It also relied on the • Recognition of the civil rights of gender identity than to issues of anti-discrimination legislation, to protect Principles’ definitions of gender identity of transgender people, without sexual orientation. Where courts their dignity and that of all LGBTI people. and sexual orientation. requiring them to renounce one have acknowledged transgender gender identity for another people’s rights at all, it has most Since then, BDS reports that police The Supreme Court decision • The creation of a new law prohibiting often been in relation to people who violence against metis is down by 98%, acknowledged that there was an onus on discrimination and violence against have undergone sex reassignment that the rights of all LGBTI people are Nepal to live up to its obligations under LGBTI people surgery—which many metis do adequately covered in the new draft international law and cited a number of • Reparation to LGBTI victims of State not want, even if they could afford constitution (due to be adopted by articles from the International Covenant violence and/or discrimination. it. There was, therefore, a lack of May, 2011) and that several metis have on Civil and Political Rights (ICCPR). jurisprudence that the lawyers could successfully applied for their citizenship Among these was Article 16, which BDS’s decision to petition the Supreme present to the court. cards using the category third gender. In identifies the right to recognition before Court was motivated not only by a addition one major bank as well as the the law. Principle 3 of the Yogyakarta determination to see an end to the Nevertheless, the concept of a ”third Human Rights Commission has provided Principles deals with this right and spells violence but also to challenge the State’s gender” in the context of Nepal and for the option ”other” in its public out some of the issues faced by the metis, denial of human rights to LGBTI people similar gender identities in India, was forms and LGBTI people are growing including lack of access to passports in general and to metis in particular. clearly laid out by the lawyers, who in confidence and taking their place in and other documentation, as well as BDS recognised that the denial of the were careful to place it in a local and Nepalese society. difficulties in securing property. Article citizenship card to metis was at the regional context. Several international 17 of the ICCPR was also cited; again the root of the many other rights violations organisations assisted by providing briefs Application of the Yogyakarta obligations with regard to the right to embedded in the institutions and culture or other documentation to the court. Principles privacy as they apply to people of diverse of Nepalese society. The arguments in this sexual orientations and gender identities groundbreaking case were lengthy and The Outcome The Yogyakarta Principles allowed the are enumerated in Principle 6 of the complex, citing the Yogyakarta Principles lawyers to make the case for gender Yogyakarta Principles. In December 2007 the Supreme Court among many legal precedents. BDS identity as a separate ground of non- handed down its decision, a sweeping and its lawyers faced several challenges, victory for BDS and for Nepal’s metis, and typical of those which may confront indeed for the entire LGBTI community similar legal cases in other countries: in Nepal. This ruling is arguably the single most comprehensive judgment • Nepal’s government responded that affirming protections for gender identity there was no need for special legal anywhere in the world. In its ruling, the protections, since Nepal’s Interim court acknowledged that Nepal had Constitution guaranteed the right been negligent in protecting the rights of In its ruling, the court acknowledged that Nepal had to non-discrimination on the basis people of the ”third gender” and those of of religion, sex, caste, origin, race, been negligent in protecting the rights of people of the LGBTI people in general. language, or belief. ”third gender” and those of LGBTI people in general.

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Naz Foundation and It should be noted that there had been perspectives to the arguments against The Outcome a previous legal challenge to Section Section 377. In 2006 Voices Against In 2003 the government responded to Voices Against 377, India 377, mounted by AIDS Bedhbhav Virodhi 377 filed an intervention in the court in Naz’s legal challenge by arguing that Andolan (ABVA) in 1993. An important support of the Naz Foundation’s petition. Indian society, by and large, disapproves The Context difference this time around was the of homosexuality, and that this combination of extended legal argument Activists realised that changing the law More than eighty countries around disapproval justified the criminal statute. (including citations to the Yogyakarta needed to be accompanied by a change the world still have laws prohibiting The government also argued that the Principles) and the work to present the in public attitudes, challenging myths consensual sexual relations between law was needed to protect children from case through the actual lived experiences and stereotypes, and building coalitions same-sex adults, essentially giving child abuse. The latter argument failed of those who suffered the effects of to strengthen mainstream, media, and government and law enforcement the to take account of the fact that the legal discrimination. Privacy, it was argued, political support. Outside the courtroom, ability to regulate a person’s private challenge presented to court sought means more than what goes on behind it was important to stress how the law and intimate decisions. These laws not to strike out the law but simply to closed doors. In fact it means little to created substantive inequality and led are often the legacy of colonial legal interpret the law to exclude adult, private, those in society who, because of poverty, to discrimination against LGBTI people codes and, as such, have become consensual same-sex acts from the ambit cannot afford their own space. Nor does in every walk of life. These political deeply embedded both in terms of their of Section 377. Effectively, this would privacy, as currently understood, take perspectives captured the reality of diverse seeming immovability and also their mean the decriminalisation of consensual account of the effects of the law on aspects of LGBTI people’s lives and implementation. The laws often carry with same sex acts. them other statutes that render LGBTI people of diverse sexual orientations and resonated with other marginalised groups gender identities in relation to censorship, suffering discrimination. They helped people unequal. Section 377 of the Indian The Application of the Yogyakarta Penal Code, introduced by the British public scorn, police harassment, and mobilise communities to oppose the law Principles colonial rulers in 1860, prohibited “carnal workplace discrimination. in the public arena. intercourse against the order of nature” The Yogyakarta Principles provide a clear and allowed for sentences of up to life The Action For instance, on June 29, 2008, over 2000 statement of the position of international people—a record number, given the imprisonment. While the law does not Two groups would mount a challenge to law in relation to the imperative to repeal weight of stigma and silence—participated specify same-sex sexual activity, it has Section 377. Naz Foundation India (www. sodomy laws wherever they still exist. in Pride marches in Delhi, Kolkata, and been interpreted in the main to apply to nazindia.org), an NGO working on HIV/ International jurisprudence, which informs Bangalore. These demonstrations, focused homosexual sex. AIDS issues, filed a petition in the Delhi the Principles, is also clear on the far- on overturning 377, attracted major media High Court in 2001 claiming that the reaching effects of sodomy laws on LBGTI attention domestically and worldwide. In effect, this has meant the harassment, law violated privacy rights, and asked people beyond arrest and prosecution. More importantly, this exposure let the blackmail, and imprisonment of lesbian, that it be reinterpreted to decriminalise Often the threat of arrest is accompanied judiciary know that a wider audience was gay, bisexual, and transgender people consensual same-sex activity between by social prejudice, hostile attitudes, and watching the outcome of the case and simply because of their actual or adults in private. Voices Against 377 a very real fear of backlash. Principle 6 was involved in the struggle. Meanwhile, perceived sexual orientation or gender (www.voicesagainst377.org) is a coalition encompasses the notion of protection a widely-publicised open letter signed by identity. The law has resulted in the of children’s rights, women’s rights, and of private spaces as well as protection of prominent intellectuals and public figures— arrest and torture of HIV/AIDS workers LGBTI groups that came together to join private decisions. authors, lawyers, doctors, academics, in Lucknow and hijras in Bangalore, the challenge with Naz. The approach artists, actors, and social activists—declared restrictions of the right to freedom was multi-faceted; with campaigns to The legal team referred to the Principles support for “the overturning of Section of assembly and expression, and a raise public awareness and to encourage in their oral arguments, citing the 377 of the Indian Penal Code, a colonial- culture of fear, contempt, and revulsion action, events to foster dialogue definitions for sexual orientation and era law dating to 1861, which punitively toward LGBTI people among society and debate, public demonstrations gender identity given in the Principles. criminalizes romantic love and private, as a whole. and community interventions, Voices In outlining global trends in legislation consensual sexual acts between adults of Against 377 sought to bring a range of related to homosexuality, the Yogyakarta the same sex”. Principles were referenced alongside 92 93 Section 3 The Yogyakarta Principles in Action Section 3 The Yogyakarta Principles in Action

the decision of the South African The Principles recognise: Transgender Netwerk The Action Constitutional Court, the Fijian High Transgender Netwerk Nederland (TNN) Court, the High Court of Hong Kong, the • Human beings of all sexual Nederland (TNN) has for a number of years been lobbying European Court of Human Rights, the orientations and gender identities the Dutch government on many issues Nepalese Supreme Court, and the UN are entitled to the full enjoyment The Context relating to transgender people, including Human Rights Committee. of all human rights; The Netherlands has been to the forefront the issue of forced sterilisation. In 2007 • All persons are entitled to enjoy in developing policies for rights for when Simply Gay was first announced in The decision of the Dehli High Court the right to privacy, regardless lesbian and gay people. It was the first Parliament, it contained no mention of a was given in July, 2009. The Court held of sexual orientation or gender country to legalise same-sex marriage change of policy on forced sterilisation. that criminalisation of consensual sex identity; in 2001. In terms of making progress on Knowing that the government had between adults in private violates the • Every citizen has a right to take issues relating to transgender people, endorsed the Yogyakarta Principles in Constitution’s guarantees of dignity, part in the conduct of public affairs however, the government admits that this relation to its international LGBT policy, equality, and freedom from discrimination including the right to stand for has not been given the same attention. TNN drew the government’s attention to based on sexual orientation. While the elected office, to participate in the the inconsistency in their policy positions. law would remain to deal with non- formulation of policies affecting Those wishing to change their gender consensual sex between adults and any their welfare, and to have equal have been able to do so in the With close reference to the relevant sex involving children, this ruling provides access to all levels of public Netherlands since 1985, but only within Principles, TNN consulted with Ministry the much-needed clarification in relation service and employment in public certain limitations. Gender change is staff and parliamentarians from all parties to same-sex sexual acts and effectively functions, without discrimination open to a person who has undergone sex and lobbied the Minister to abolish the decriminalises same sex acts between on the basis of sexual orientation reassignment surgery, and the request requirement for forced sterilisation. adults. In the Court Ruling, the judges and gender identity. for a legal change of gender must be Within two weeks, the Minister also referenced the Yogyakarta Principles. accompanied by a statement from experts announced that the government would In particular they noted: verifying that the person’s body has been bring the law in this area in line with the adapted to the new gender as far as Yogyakarta Principles. possible from a medical and psychological viewpoint. A further official requirement Since there had been no actual movement is that the person will never again be able on the issue, TNN took the opportunity to parent or to children. This means to raise the issue again in 2008 when forced surgical sterilisation for both trans the Dutch Minister for Foreign Affairs men and trans women. was in New York for the presentation of a statement on sexual orientation, Meanwhile, shortly after the launch of the The archaic formulation of many sodomy laws (the fact that they do not clearly specify gender identity and human rights at the Yogyakarta Principles in 2007, the Dutch which acts, much less which groups, they target) means it is sometimes difficult to United Nations. When he was speaking government announced that it would use construct a legal challenge to them based on equality unless the legal system has at a side-event, the then Chair of TNN a tradition of overturning laws written with neutral language but that have unequal the Yogyakarta Principles as guidance produced his passport proclaiming that impacts on different groups. Formal equality is rule-bound; it demands that laws treat for its international LGBT policy. The in order to get the passport he had to everyone alike and focuses on eliminating inequalities written into the language of the government included this commitment in prove sterilisation and demanded of the law. Substantive equality strives to analyze and root out deeper, sometimes hidden its Simply Gay policy plan issued in 2008. Minister present that he do his homework inequalities in the application, effects, and contexts of laws. A formalistic approach to and apply the Yogyakarta Principles at Section 377 might find little wrong with it, since it does not explicitly single out any home as well as abroad. particular group or identity for legal sanction. Only an approach that looked at the actual social and practical effects of the provision would uncover the way it consigned gays, lesbians, hijras, and others to second-class status. 94 95 Section 3 The Yogyakarta Principles in Action Section 3 The Yogyakarta Principles in Action

The Outcome The Application of the Yogyakarta relating to one’s sexual orientation or Principles gender identity and decisions and choices A further Ministerial announcement was regarding one’s body. made that a change of law was imminent The launch of the Yogyakarta Principles and this was followed up by a letter from and their adoption by the Dutch The applicability of the Yogyakarta the Minister for Justice to TNN stating government as a guide to its international Principles was reinforced for the Dutch that a proposal would come to parliament LGBT policy provided the opportunity government by the publication by the by the end of 2009. for TNN to reinforce its lobbying efforts Council of Europe (CoE) of an issue by ”shaming” the government into paper on transgender. This is referenced A letter from the Ministry of Education, applying the same approach at home as in the Minister of Education’s October Culture, and Science to the Speaker it does abroad. The action also gave the 2009 letter to the Parliament. It points of the Dutch House of Representatives opportunity to delve into the specifics of out the shift within the CoE paper from in October 2009 states the Minister’s the Principles. It is likely that the Dutch that of treating as a medical intention to change the law. The government accepted the application and legal issue to one of gender identity letter discusses the rationale for the of the Yogyakarta Principles without and human rights. The letter lists twelve government’s proposed changes to the appraising itself of the details. recommendations for transgender policy policy of forced sterilisation. It also refers in Europe for the forty-seven member to Simply Gay, in which the government Several obligations that pertain to states of the CoE. At the top of that list of acknowledges its lack of knowledge transgender persons on this issue are twelve is the recommendation to take the of the issues facing “the cautiously reinfored by the Principles. Principle 3, Yogyakarta Principles as the starting point. estimated 30,000 to 100,000 transgender among other things, relates to the right (It should be noted that the final text of persons” in the Netherlands. to choose one’s gender identity and CoE Recommendation, launched in March to legal recognition of one’s identity, 2010, and discussed briefly on page Importantly, the letter draws attention to without having to undergo any medical 28 of this Guide, does not include any the argument that the requirement for interventions. In Principle 17, the rights reference to the Yogyakarta Principles.) forced sterilisation has lost its importance to the highest attainable standard of in the context of same-sex marriage. The health and to free and informed consent intention of the law at the time was to in decisions in relation to healthcare are prevent the situation of a child having stressed. Principle 18 deals with issues two parents of the same sex. Since there of protection from medical abuses, and are now many such children, the original Principle 6 deals with the right to choose intent of the law is redundant. whether or not to disclose information

Without the use of the Yogyakarta Principles, we would have been stuck with Several obligations that pertain to transgender persons on this the existing law for much longer, and any change could easily have mirrored the Belgian law on gender marker changes (of 2007), which still requires issue are reinfored by the Principles. Principle 3, among other of trans people as a pre-requisite for a legal gender change. Only through the things, relates to the right to choose one’s gender identity consequent use of the Yogyakarta Principles in our argumentation have we and to legal recognition of one’s identity, without having to been able to ensure that a proposal for a new law is likely to have no bodily requirements for the applicants. undergo any medical interventions.

Justus Eisfeld, Former Chair, TNN 96 97 Section 3 The Yogyakarta Principles in Action Section 3 The Yogyakarta Principles in Action

Aizhi Action Project and 1997 repeal of the law used against repressive political system had historically than a third supported it. The medical homosexuality banning ”hooliganism”, used psychiatry as a tool to suppress argument in the magazine broadened Chinese Society for the Study the medical profession remained a site opposition, making the misuse of to a discussion of facts about the lives of Sexual Minorities (Cssm) of abuse for LGBTI people in China. So, psychological diagnoses a dangerous and social status of lesbians and gays in when the Chinese Psychiatric Association subject on which to advocate. China. One writer referred to it as the first The Context (CPA) set up a task force to review open debate on homosexuality in the the Chinese Classification of Medical The general approach of AIZHI was simply Chinese media. Medicine has a long history of enforcing Disorders (CCMD)—its version of the to ask for an opinion on homosexuality, particular moral perspectives about DSM—LGBTI activists recognised an rather than advocate a position. At The Outcome sexuality under the guise of “healing”. opportunity to advocate for the delisting the same time, AIZHI targeted gay- In 2001 the latest edition of the These views have justified invasive and of homosexuality as an illness. friendly psychiatrists and urged them Chinese Classification of Mental abusive ways of “treating” homosexual to participate in the effort to delist Disorders (CCMD-3) removed the desire that have harmed many people and The Action homosexuality from CCMD. Enlisting diagnosis of homosexuality as an illness. reinforced social and cultural prejudices. international pressure was an important A coalition of two main groups undertook This represented an important step dimension, especially since the space for a campaign of action. AIZHI Action forward. Changing the culture and The Yogyakarta Principles are clear about domestic lobbying was limited. Activists Project (www.aizhi.org) is a not-for- practice of the medical world is clearly a this issue and articulate international law persuaded the American Psychological profit organisation based in Beijing that longer-term project, and this advance is as it applies to this pervasive form of Association and the American Psychiatric provides information on sexual health, the necessary basis for change. It is also prejudice. Principle 18 affirms, “a person’s Association to write directly to the including HIV and AIDS. It also works an important tool for ongoing activism sexual orientation and gender identity Chinese Psychiatric Association and to defend sexual rights in the areas of that can be used to push for those are not, in and of themselves, medical call for removing homosexuality from education, law, and policy. Wan Yanhai, changes in culture and practice. Also of conditions and are not to be treated, the new version of the CCMD. Further the founder of AIZHI, is a former public significance was the public debate that cured or suppressed”. It goes further raising the visibility of the issue, a special health official fired for setting up an surrounded the campaign. to say that States shall, “Ensure that issue of the AIZHI Newsletter included HIV and AIDS hotline. The Chinese any medical or psychological treatment information on the current situation of Society for the Study of Sexual Minorities Disappointingly, the new CCMD or counseling does not, explicitly or homosexuality in other countries, the (www.csssm.org/English/front.htm) is continues to state that homosexuals implicitly, treat sexual orientation and American Psychological Association’s an independent alliance founded in experiencing distress due to their sexual gender identity as medical conditions Policy Statements on Gay, Lesbian, and September 1997 by a group of students, orientation (ego-dystonic homosexuality) to be treated, cured or suppressed”. In Bisexual Issues, and other materials scholars, and other professionals across need mental health services, implying that 1973, the American Psychiatric Association related to civil rights and the world that promotes gay and lesbian sexual orientation itself predisposed a removed homosexuality as a listed issues. The newsletter was mailed to all affirmation in Chinese culture, with a person to a high level of stress that could disorder from its Diagnostic and Statistical CCMD task force members, some 170 focus on mainland China. develop into a condition requiring mental Manual (DSM), a volume that had great psychiatric hospitals, and almost 300 health services. influence on the profession worldwide. psychologists, sexologists, and other In the push for depathologisation—the The World Health Organization removed health care professionals nationwide. removal of homosexuality from lists of homosexuality from its own list of mental The Application of the Yogyakarta diseases—activists faced two serious illnesses in 1990. Meanwhile, a mental health magazine Principles challenges. First, the cultural and social published in Zhejiang Province authority of the medical profession As stated above, the Yogyakarta Principles The development of this issue in China, and targeted to the general public made it resistant to outside criticism articulate the position of international though arising before the Principles, is a began publishing articles on whether and to internal debate. Second, medical human rights law on this issue. States are good case study about the application homosexuality was a desire or a attitudes to homosexuality resonated obligated to ensure that “any medical or of Principle 18. Despite some positive diagnosis. Though many of the articles far beyond the medical sphere; the psychological treatment or counseling changes in Chinese law, such as the opposed depathologisation, more 98 99 Section 3 The Yogyakarta Principles in Action Section 3 The Yogyakarta Principles in Action

does not, explicitly or implicitly, treat In terms of incorporating the Principles Developing new government policy sexual orientation and gender identity into their work and finding opportunities as medical condition to be treated, for their broader promotion, AIZHI has cured or suppressed”. translated the Principles into Chinese. LGBTI activists have achieved significant success in recent They have organised two major events: a It is important to note that while “sexual conference specifically on the background years as governments increasingly respond to the needs of orientation” has been declassified as a and application of the Principles and LGBTI people. As governments develop policies around labour, mental illness in many countries, “gender a workshop on HIV and human rights identity” or “gender identity disorder” in Beijing in 2007. In their lobbying public safety, health, education, and other sectors, activists can often remains under consideration. The work AIZHI has written to the State influence the policy-making process to achieve better outcomes Yogyakarta Principles address this in Administration of Film, TV, and Radio Additional Recommendation F to the urging a lifting of the ban on LGBT for LGBTI people. In these case studies, activists have used the World Health Organization. films and TV programmes and to the Principles to communicate to government officials and define China National Human Rights authority obligations of the government. The Yogyakarta Principles also address the demanding that rights for LGBT people medical profession directly in Additional be included in the government’s human Recommendation M, urging the review right action plan. In both letters AIZHI of practices and guidelines so as to bring referenced the Yogyakarta Principles. them into line with the standards outlined in the Principles.

It is important to note that while “sexual orientation” has been declassified as a mental illness in many countries, “gender identity” or “gender identity disorder” often remains under consideration. 100 101 Section 3 The Yogyakarta Principles in Action Section 3 The Yogyakarta Principles in Action

Brazilian Association of promote the citizenship and defend the The Outcome National Congress: between rights of lesbians, gay men, bisexuals, same sex couples; the prohibition of In Partnership with the National Lesbians, Gays, Bisexuals, and trans persons and advocate for discrimination including on the grounds Articulation of Trans Persons (ANTRA), Travestis and Transsexuals a democracy free from all forms of of sexual orientation and gender identity; ABGLT has run a campaign to permit discrimination. and the right for trans persons to change (Abglt) trans people to use their preferred name their forenames. Three cases are also (“social name”), rather than the name While it strongly welcomed Brazil without before the Supreme Court, two of them The Context found on their ID documents, on all Homophobia, ABGLT recognised that requiring the recognition of same-sex State school records and in the school Much progress toward ensuring that this ambitious programme needed unions and the other regarding the environment. The objective was to help lesbians, gay men, bisexuals, and trans to be embraced by all government change of trans persons’ forenames. In reduce absenteeism and withdrawal persons can live with the same dignity ministries if it was to become effective. all these cases ABGLT has provided the from formal education owing to stigma and respect to which all people have a The group recognised that there needed Yogyakarta Principles to the congressmen and discrimination and to avoid the right has taken place in Brazil over the last to be projects designed to strengthen and congresswomen and the judges consequent social marginalisation. One thirty years due to the ever-strengthening organisations that work to promote LGBT involved. As at March 2010, no final of the main tools used to promote the activism of the LGBT movement in that citizenship and to combat homophobia, decision had been reached. campaign was the Yogyakarta Principles, country. Nevertheless violence against increased capacity for professionals and which were sent to the Education LGBTI people continues to be rampant. representatives of the LGBT movement The Application of Yogyakarta Departments and Education Councils of LGBTI people continue to be treated as who work to defend human rights, and Principles the country’s 27 states, as well as to the if they did not have full human rights, general education about human rights for Ministry of Education and the National The launch of the Principles provided and laws continue to treat LGBTI people the public at large. ABGLT lobbied the Education Council, with the request for ABGLT with an unprecedented unequally. Taken as a whole, the Principles government to disseminate information the official adoption of trans persons’ opportunity. Here was a new tool that make the point that LGBTI people have about human rights so as to promote social names in the school environment. encompassed all dimensions of human the same range of rights as others. the understanding that all should enjoy As of March 2010, seven states, five the rights enjoyed by society at large, rights as they applied to LGBT people. municipalities, and one university have In terms of building capacity and raising In 2004 the government launched Brazil including LGBTI people. brought the measure into force. Other awareness, the Yogyakarta Principles had without Homophobia, a public education states and municipalities have introduced the potential to achieve much more and and persuasion programme designed The Principles were translated into the measure in other areas such as social to fulfil more objectives than anything to curb discriminatory attitudes against Portuguese by Sexuality Policy Watch services. One state and the municipality else available. In addition, because of LGBTI people. That programme was (SPW) and launched in August 2007 in of Sao Paulo have implemented the their breadth in describing the realities of developed after a series of consultations three major cities. After the national measure in all their government services. life for LGBT people and because of their between the government and civil society launch, ABGLT approached The National This has been one of the principal genesis in international law, the Principles with the stated aim to promote LGBT Special Secretary on Human Rights, outcomes to which Yogyakarta Principles would become a springboard for ongoing citizenship by ensuring equal rights who republished the Principles (10.000 have contributed. training and policy formation. and combating homophobic violence copies) for distribution at the National and discrimination. Conference on Public Policies for the The Principles have also served as a LGBT population in June 2008. ABGLT persuasive tool for ABGLT to use in the The Action has helped the State distribute them in policy-making process. ABGLT monitors all areas of the country. Both ABGLT and ABGLT (www.abglt.org.br) was founded the legislative process in the National SPW have made efforts to disseminate in 1995 and is a national network, with Congress, as well as cases involving LGBT the Principles in Portuguese-speaking 237 member organizations representing issues brought before the Supreme Court. African countries. The Principles are all states. It is the largest LGBT network Three bills of particular interest for LGBT available for download on both websites. in . ABGLT’s mission is to are currently being appraised by the

102 103 Section 3 The Yogyakarta Principles in Action Section 3 The Yogyakarta Principles in Action

United Belize Advocacy Have Sex with Men to Access Sexual treatment and prevention programmes. UNIBAM has used the Principles to and Reproductive Services. That report UNIBAM’s long-term goal is to make use promote awareness of health as a Movement (Unibam), Belize targeted the National AIDS Commission of the NAC’s mandate to develop policies human right—and the consequences of (NAC), a body created in 2005 to friendly to people vulnerable to HIV and other rights abuses on health—among The Context coordinate, facilitate, and monitor the AIDS and enlist the Council in the cause professionals and within its own community. national response to HIV and AIDS as well of changing the law. There are plans to use the Principles as Same-sex sexual activity is a criminal as the National HIV/AIDS Strategic Plan. a benchmark in an initiative supported offence in Belize. Homosexuals The Application of the Yogyakarta by AUSAID to assess gaps for the LGBTI and prostitutes are prohibited from The goal of the report was to examine Principles community within government policy. In immigrating to the country and, since the practices and attitudes of the health addition, in classes on human rights at the rape is defined as an offence against and medical establishment towards MSM Show No Mercy highlights the Yogyakarta University of Belize, UNIBAM has used the women, men are not legally protected clients while at the same time studying Principles in a section on international Principles to demonstrate the breadth of from rape. These colonial-era laws the perceptions, attitudes, and behavior standards relating to MSM issues. provision within human rights law. and a society ridden with prejudice, of the MSM community as they attempt to discrimination, and police violence access the services provided by the health A copy of the Principles was among toward the LGBTI population are among and medical establishment in Belize. the supporting documentation that the barriers preventing men who have UNIBAM submitted to the National sex with men (MSM) population from There has been little public debate AIDS Commission. The activists used accessing public health prevention, care, on repeal of Belize’s , the Principles to introduce a rights- treatment, and support services in Belize. and UNIBAM’s report refrained from based framework as complementary Because of these barriers, MSM are at a addressing the criminalisation of to a public health one. They also used higher risk for HIV/AIDS. The Yogyakarta homosexual conduct at length. However, them to reinforce the basic claim that Principles offer a rights-based approach it laid out the causal connections between discrimination and stigma based on to this health issue by providing a basis to criminalisation—which drives vulnerable sexual orientation deny MSM their advocate for decriminalisation of same- people underground and hampers fundamental human right to the highest sex sexual activity and the right to the targeted outreach and information— attainable standard of health. highest attainable standard of health. and heightened rates of HIV infection. Moreover, citing the Yogyakarta Principles The Action allowed UNIBAM to make the case that United Belize Advocacy Movement (www. international law, as well as public-health unibam.org) is the only organization pragmatism, mandated the repeal of working on issues of sexual orientation in Section 53, the law criminalising same-sex Belize. Their work focuses mainly on HIV/ sexual activity. AIDS prevention and access to treatment for men who have sex with men, as well as The Outcome on advocacy for legal reform and public The NAC had started a process of With the NAC in particular, it is too early to tell as the review of the legislative education to confront discrimination and legislative and policy review of HIV/AIDS framework is in its infancy. There is a new government and hence a change of chair, homophobia in the country. prevention and treatment efforts at the so only time will tell. But what is important is that we included the Principles in an time the report was issued, and UNIBAM’s electronic copy of our newsletter, distributed to 250 persons in the health system. In February 2008, UNIBAM produced a strategy was to highlight the situation of And also we incorporated them in our teaching sessions in the MSM community during outreach. ground-breaking report called Show No MSM and push for recommendations that Mercy: Barriers that Exist for Men who would increase the community’s access to Caleb Orozco of UNIBAM 104 105 Section 3 The Yogyakarta Principles in Action Section 3 The Yogyakarta Principles in Action

Swedish International and understanding among Sida staff of The action plan also called for Sida Many States and societies impose the linkages between gender identity and to include LGBTI issues in all relevant gender and sexual orientation norms Development Co-operation sexual orientation with core development government dialogue and lobbying on individuals through custom, law Agency (Sida) issues such as poverty reduction, the and to provide support to local and and violence and seek to control how protection and exercise of human rights national LGBTI groups and related they experience personal relationships Rights for LGBTI people and and combating gender-based violence was policy measures. and how they identify themselves. The uneven and in many cases inadequate. policing of sexuality remains a major development policy The study also turned up a lack of explicit The Outcome force behind continuing gender-based mention of LGBTI issues in Swedish policy violence and gender inequality. The evaluation of the 2007-2009 action and strategy documents and concluded The Context plan demonstrates the significant work that Sida-supported programmes did The plan further references the done in many countries on LGBTI International human rights law not deal with LGBTI issues in a consistent Yogyakarta Principles to support the issues, including dialogue with civil encompasses a very wide range of manner, if at all. definition of gender-based violence society, other donors, and governments; governmental activity and standards. as a violation of human rights and the inclusion in country strategies; and Because of this breadth, determining The Action pursuant State obligations. Importantly, programme initiatives. As well as directly how human rights standards apply to the plan recommends that Sida workers In order to implement the funding a number of LGBTI groups, Sida one group of people can be a daunting and partners support the implementation recommendations of this report, the headquarters has actively promoted task. The Principles offer, within one of the Yogyakarta Principles in their own Swedish government mandated an Action LGBTI issues in its networking with other reference document, a synthesis of human work as well as in government policy. plan for Sida’s work on sexual orientation donors and international stakeholders, rights standards and how they relate to A range of other recommendations to and gender identity in international and by giving radio and TV interviews, LGBTI people. The Swedish International address gender-based violence refer development cooperation 2007–2009. writing a newspaper article, participating Development Co-operation Agency directly to LGBTI people. They seek to The overall goal was to systematically in and arranging seminars at pride festivals (Sida), under the oversight of the Ministry empower LGBTI people by raising their include an LGBTI perspective in and the World Out Games, and including of Foreign Affairs, provides development awareness about their rights in order development cooperation, and therefore LGBTI rights in newly-adopted policies. aid and support in approximately 120 to enhance their ability to demand and to improve living conditions for LGBTI countries in Africa, Asia, Latin America, exercise their rights through the justice people, including their ability to influence and Europe. Its programmatic emphases The Application of the Yogyakarta system and other means; support existing their own situations. include human rights and democracy, Principles government and civil-society initiatives to as well as education and health. Its improve access to appropriate services Sida’s starting point for the plan’s The impact of staff training was reflected recognition, therefore, of rights for LGBTI and support for survivors of gender-based implementation was to create best in the inclusion of violence against LGBTI people as human rights, and its focus violence (as well as tackle the stigma that practice in internal operations, through people in a definition of gender-based on the relationship between rights for exists around the use of these services, the inclusion of LGBTI issues in Sida’s violence in Sida’s 2008-2010 action plan LGBTI people and development can especially for women, girls and LGBTI staff and organisational policy. Staff for work on gender-based violence. In have a far-reaching impact on its partner people facing multiple discrimination); and partners would be equipped to its efforts to establish the relationship organisations—which receive funding and to challenge attitudes by recognising appropriately incorporate LGBTI issues between gender norms and violence and support from Sida,—as well as on the LGBTI people’s right to control their into their work through the inclusion of an against LGBTI people, the plan cites the governments of those countries in which Yogyakarta Principles, directly quoting a bodies and sexuality. they operate. LGBTI perspective in all training sessions on human rights, , and paragraph from the Introduction to the Principles: A 2005 study of Swedish policy and HIV/AIDS. In addition, Sida provided administration of LGBTI issues in special training in LGBTI issues to regional international development cooperation advisers working in the fields of human concluded that the level of knowledge rights, democracy, and HIV/AIDS. 106 107 Section 3 The Yogyakarta Principles in Action Section 3 The Yogyakarta Principles in Action

The Yogyakarta Principles Additional Alliance for full citizenship The Action Recommendation P is addressed The alliance for full citizenship for specifically to governmental and private for Lgbt People, Colombia LGBT people is a coalition of groups funders. Funders enjoy unique positions and individuals created to work in of influence and can use this influence to The Context coordination with the city government promote equality and non-discrimination In Colombia there are laws that recognise in Bogotá. Its aim is to contribute to, among the programmes they fund. and guarantee people’s rights. Historically, monitor, evaluate and test socially the Funders can often exercise influence these have been denied to LGBT people. implementation of the LGBT public with government agencies to which they These are the basic rights (“derechos policy in alliance with its goals. The city provide development assistance, thus patrimoniales”) of a couple to social government of Bogotá began work on allowing them, among other efforts, to security and, in the case of the death its LGBT policy in 2006 by engaging in initiate inter-agency dialogue on the topic of a partner, a pension. a wide-ranging consultative process that of rights for LGBTI people. included convening focus groups with It is important to note that in some cities specific populations (for instance, LGBT of the country public policy actions are children and their families; transgender being put into place with the aim of people doing ) and workshops restoring a non-discriminatory culture and with public officers from the sectors promoting the respect and guarantee of identified as key by the LGBT community full citizenship for LGBT people; it is also (health, education, security, work, culture). important to realise that public policies are of a municipal character, not national. The Outcome

The case of the Colombian capital Decree 608 was adopted on 28 city is worth highlighting. In Bogotá, a December 2007, and in 2009 agreement public policy decree was first signed 371 was signed announcing public (Decree 608, adopted in 2007) that policy guidelines designed to guarantee obliged institutions, by direct order full rights to lesbian, gay, bisexual, of the government, to transversalise and transgender people in the capital (mainstream) their work in matters such district. The agreement committed as sexual orientation and gender identity the city to a broad range of anti- in the city. This document was later discrimination measures with regard to passed by agreement (Agreement 371, sexual orientation and gender identity adopted in 2009), meaning that the city’s and affirmed that the city “recognises legislators must decide by consensus and respects the right of all people to that non-discrimination is a fundamental construct their own self-definition with matter for Bogotá; this made it possible respect to their body, their sex, their to build sport centres such as the LGBT gender, and their sexual orientation”. The District Community Centre, the first of its policy was allocated a budget to ensure Additional Recommendation P of the Yogyakarta Principles recommends that: kind in Latin America. its implementation. Some encouraging early progress was realised across a Governmental and private funders provide financial assistance to non-governmental and other organisations, for the promotion of the human rights of persons of diverse sexual orientations and gender identities. 108 109 Section 3 The Yogyakarta Principles in Action Section 3 The Yogyakarta Principles in Action

number of sectors, in particular health, The Application of Yogyakarta Seeking a more responsive government education, and justice. Principles

The Constitutional Court of Colombia has In this context, the Yogyakarta Principles Laws, new and old, can be meaningless to the lives of individual have helped strengthen the perception been instrumental in bringing about the LGBTI people if they are not implemented in a manner consistent recognition of rights for LGBT people; the that the protection of sexual orientation Court has been responsible at a national and gender identity rights is based on an with human rights standards. These case studies are examples of level for the restoration of social security international consensus. activists seeking to ensure that service providers, civil servants, and pension rights as well as access to healthcare. The alliance used the Yogyakarta law enforcement officers, and health care providers carry out their Principles as reference materials in its duties in fulfillment of the rights of community members. Finally, of particular importance to work with the city authorities, to argue the ongoing implementation of the that the needs of LGBT people were a policy is the consolidation of the city matter in keeping with the principle LGBT Consultative Council, which that a city should be free of all forms communicates directly with the district of discrimination. Since the Principles of Bogotá on matters to do with sexual covered all rights in such a way as to orientation and gender identity. The reflect real-life situations of LGBT people Council is comprised of four civil society and their social, political, and cultural representatives elected by the LBGT environments, they had the potential to community through a community act as a guide for policy makers. Also, participatory process. given that the Principles had international applicability, the Consultative Council was confident that promoting the Principles to policy-makers would add authority to their efforts.

Of course, the Principles are not legally binding. That is not were their force lies. In my view, what is important is the effect they have on people, the way in which, as people become more familiar with them, they realise that yes, all those rights are also about us.

Sandra Montealegre, Colombia 110 111 Section 3 The Yogyakarta Principles in Action Section 3 The Yogyakarta Principles in Action

New Zealand Human Rights The action plan consequently The Human Rights Commission consulted the following areas, as well as detailed recommended an inquiry into the trans people on which issues were most recommendations: Commission discrimination faced by trans people in relevant to investigate, and this led to New Zealand. The recommendation was a focus on three areas: discrimination in • Increasing participation of transgender The Context given priority because of the level of general, access to health care, and legal people in decisions that affect them marginalisation trans people faced, the recognition of gender. Over a year and • Strengthening the legal protections to Beginning in 1999, nine years of Labour- very limited understanding of and minimal a half, the Commission interviewed over bar discrimination based on gender led governments in New Zealand consultation by government agencies two hundred transgender and intersex identity brought about a number of significant with trans people, and the role the New Zealanders. Participants told stories • Improving access to health services, improvements in the lives of lesbian, Commission could play in emphasising of discrimination in employment, housing including gender reassignment gay, and bisexual people, including the that this was a human rights issue. and services, harassment in public and services Civil Union Act enabling the registration private places, and violent assault. The • Simplifying requirements for change of same-sex partnerships. However, like The Action vast majority of submissions to the Inquiry of sex on government ID documents. many other countries, New Zealand still were oral rather than written, with a Launched in 2006, the Inquiry placed requires the dissolution of a trans person’s number of group discussions—from the The report also recommends in-depth individual trans people’s stories within marriage in order for that person to offices of a sex workers’ organisation to a consideration by the Human Rights a human rights framework, referencing change his or her birth certificate. large meeting of Maori trans people. Commission and relevant government the Yogyakarta Principles to firmly agencies of the specific human rights situate the issue of gender identity The New Zealand Human Rights Act of The Outcome issues facing intersex people. Given the within international human rights law. 1993 explicitly prohibits discrimination on level of confusion among trans people In an approach akin to the Yogyakarta To Be Who I Am/Kia noho au ki toku the basis of sexual orientation and sex, about whether or not they were protected Principles, the inquiry did not seek to ano ao, the first extensive inquiry by a but not gender identity. The New Zealand under the law, the Inquiry recommended identify new or specific rights for trans national human rights institution into Human Rights Commission, supported by that the legislation be reworded to people, but took the rights set out in discrimination based on gender identity, the government’s legal office, has always include gender identity. accepted complaints of discrimination the Universal Declaration of Human was released by the Commission in 2008. Rights and New Zealand law and sought The final report of the inquiry represents based on gender identity on the ground The Human Rights Commission has to determine whether trans people an evidence base that had not previously of sex. However, the decision to interpret continued steady involvement in trans experienced those rights to the same existed, and thus a solid rationale for the prohibition of discrimination based issues since publishing the report, with an extent that other New Zealanders did. the Inquiry’s final recommendations. The on sex to also cover discrimination based implementation programme up to 2011. on gender identity is easily reversed. Inquiry called for immediate action in Additionally, it is not common knowledge From the beginning, the inquiry throughout the trans community that such set out and succeeded at being an a protection currently exists. empowering process, with emphasis on the participation of and accountability to the widest possible range of transgender To build an overall picture of the status of The Human Rights Commission did a very good job in completing the report. They human rights in New Zealand, the 2005 people. The Commission provided a called public meetings in various different main centres, and also went to smaller centres Mana kit e Tangata: the New Zealand neutral place for trans people to meet to interview individuals. I work for NZPC- the New Zealand Prostitutes Collective—and Action Plan for Human Rights was and learn from and about each other’s they came in to our branches in Auckland and Christchurch, as well as our office in developed through a consultative process experiences. As part of the Commission’s Wellington, and spoke with groups of transgender people in an environment they were with over 5000 people. Trans people human-rights-based approach, the inquiry comfortable with, and felt safe in. The meetings were recorded, and notes were also taken. It was very in-depth, and those who took part believe the Commission did a very emerged as one of the most marginalised process itself was meant to allow trans good job, and were more than satisfied by the results. groups in the country. people to begin to use human rights as leverage in activism and to legitimise their Calum Bennachie, a activist voices in decision-making. 112 113 Section 3 The Yogyakarta Principles in Action Section 3 The Yogyakarta Principles in Action

Its focus is on empowering trans activists surgery to a simple Family Court of measures to raise public awareness, to to sustain campaigns and to engage declaration. Trans people still have train State personnel, to review legislative directly with government agencies. Its the option of not having their sex and administrative measures, and to activities have included: recorded on their passport. foster a proactive approach to ensuring • The Ministry of Health, in consultation human rights. In many countries this • The Assume Nothing exhibition and with the Human Rights Commission, becomes in large measure the remit of workshop on transgender issues and is setting up a Gender Reassignment human rights institutions. An important human rights. One very positive result Health Services Working Group to dimension of the exercise undertaken from the public workshops around develop guidelines for the provision by the Commission in New Zealand the Assume Nothing exhibition is the of appropriate health services for trans was toward the empowerment of trans growing visibility and activism of trans people. people—both to step forward to claim youth with the emergence of trans • The Police has amended policies and recognition before the authorities youth groups in three cities. procedures for trans recruits. regarding the realisation of their rights • The hosting in 2009 of a national • The Department of Labour’s and also to step forward to take their human rights hui/meeting that Transgender People at Work place in New Zealand society. In effect presented an opportunity for many of published guides for employers and the Commission was responding to one those involved in the Inquiry to meet. employees. of the Yogyakarta Principles’ Additional A follow-up hui is planned for 2010. Recommendations addressed to national • The facilitation of two intersex The Application of the Yogyakarta human rights institutions that they roundtable events, bringing together Principles integrate the promotion and protection intersex people and groups, family of the human rights of persons of diverse members, health professionals, The Commission referenced the Principles sexual orientations and gender identities government agencies, and academics. as a tool, both to understand the range into their work. • The development of a Frequently of issues faced by trans people as well Asked Questions resource on trans as to understand the application of issues for schools. international human rights law to these issues. Its work to uncover the issues and While the recommendations are not to pay attention to a part of New Zealand binding, they do provide trans activists society that, up to this point, had been with specific actions for which to hold ignored can be characterised as fulfilling the government accountable. The report the mandate of Principles 1 and 2, which serves as an official survey of the needs seek to ensure that all citizens enjoy all of transgender people in New Zealand rights without discrimination on the basis and what the government must do to of gender identity or gender expression. meet them. As discussed in the Yogyakarta Principles Up Close (page 63), the promotion of Participants told stories of discrimination in employment, Some government departments and housing and services, harassment in public and private agencies have responded: human rights within society as a whole is an obligation that needs to be discharged places, and violent assault. The vast majority of submissions • The Department of Internal Affairs has throughout all the functions of the State so as to maximise the opportunities for to the Inquiry were oral rather than written, with a number changed its criteria for sex-change of group discussions—from the offices of a sex workers’ information on passports from medical the realisation of specific rights. This evidence of full gender reassignment permeates all of the Principles in the form organisation to a large meeting of Maori trans people. 114 115 Section 3 The Yogyakarta Principles in Action Section 3 The Yogyakarta Principles in Action

Transsexual Organisation for was founded in 2004 in Rancagua, Chile. rights. As Andres Rivera Duarte, President with the new government in Chile in May Its mission is to advocate for the human of OTD says, “It is very important for trans 2010 and work toward a radical change Dignity in Diversity, Chile rights, visibility, personal development, men themselves to know this”. in policies to benefit transsexuals in the and social integration of transgender men. areas of education, health, and social The Context The reaction from health professionals integration. An important area of OTD’s work is to the Principles has also been very Criteria and procedures for gender- providing sensitivity and awareness positive, according to OTD activists. The Application of the Yogyakarta change recognition in Chile are onerous training to healthcare practitioners. Health professionals are able to gain a Principles and humiliating, with final decisions being OTD facilitates workshops in faculties more comprehensive understanding of taken at the discretion of judges. Gender of nursing, medicine, and , the challenges faced by trans people and It is clear that the work of OTD has reassignment surgery is mandatory and as well as for staff at public hospitals. how health services and practices can been enhanced through the use of the such surgery can only be undertaken Through the participants in those accommodate the needs of trans people. Yogyakarta Principles. This new tool following psychological and psychiatric workshops, OTD is building a network of Given that the Principles have been allows them to deliver their trainings evaluations, hormone treatment, and sympathetic professionals to whom they drafted by an eminent group of experts, with more confidence and authority and living in the desired gender for a period can refer trans people. OTD also works they carry an authority and authenticity to talk about the issues faced by trans of five years. At this point transsexuals intensively with trans men themselves, that makes their promotion easier. people within the framework of human bring their request for official sex facilitating workshops to make them more rights law, to which Chile has signed change to the Court. The Civil Registry, aware of their rights—particularly in the OTD made a submission to the United up. The Principles provide them with the government agency in charge of area of health care—as well as to help Nations Human Rights Council when concrete examples of discrimination issuing identification documents in them interact with health care institutions. the council was reviewing Chile’s and marginalisation and all with the Chile, has taken the position that if the compliance with international human verification, so to speak, of a group of transsexual person has had children he The Yogyakarta Principles have become rights standards. This review, part of international experts. should not be permitted any change a core part of all OTD’s trainings. The the Council’s Universal Periodic Review of official documentation. The Medical Principles are now part of the dossier that procedure in May 2009, produced a Legal Board is required to verify through is distributed to all workshop participants. number of recommendations regarding invasive physical examination that The Principles are cited as a basis for the removal of laws that discriminate on gender reassignment surgery has been claiming the highest attainable standard the basis of sexual orientation and gender undertaken. And, after all of this, the of health. Healthcare practitioners are identity. The Netherlands included in decision rests with the judge. In effect, taught about the rights of those in need its recommendation in this regard that there are no provisions within the law of services, and trans men are educated Chile use the Yogyakarta Principles as a governing the process, no guarantee that about their ability to advocate for the guide to policy and legal development. the prescribed procedure will result in the rights articulated in the Principles. OTD is hopeful that it will begin talks desired legal change, and beyond that no safeguards to protect the dignity of The Outcome those petitioning the court in this matter. Neither is there any economic or service The reaction to the Yogyakarta Principles support from the State. has been very positive from all workshop It is easier to understand and believe what we are saying when it comes with participants. OTD considers it very the support of such an impressive group of experts on gender identity. Also it is The Action important to demonstrate clearly that the important because this issue is very new, at least in Chile. It has been only in the issues faced by trans people are in fact last four years that the words ‘transsexuality’ or “’gender identity’ have begun to Transsexual Organisation for Dignity in human rights issues and to foster among circulate. In that sense, the Principles have been of great help to us, because they Diversity (Organización de Transexuales community members both confidence allow us to start ‘stepping on the shoulders’ of international experts. por la Dignidad en la Diversidad, OTD) and a notion of entitlement to equal Andres Rivera Duarte, President of OTD 116 117 Section 3 The Yogyakarta Principles in Action Section 3 The Yogyakarta Principles in Action

Unión Afirmativa de José Ramón Merentes, UAF’s President, month period. Raids by police on gay Because of the work of the organisation explains the method: bars practically stopped completely. the NOO plans to establish a Special Venezuela As Merentes says, “What had been a Ombuds Office to deal with LGBTI issues, We wanted a change of attitude in systematic practice shrank to just a few similar to those already in place for The Context those who took the training that would isolated incidents”. women, people with disabilities, public Union Afirmativa or UAF later translate into changes in the way services, and consumer rights. In addition, (unionafirmativa0.tripod.com) is a they dealt with gays and lesbians. The Application of the Yogyakarta UAV is working with the NOO in the Venezuelan NGO founded in 2000. Its That is why we chose a workshop Principles organisation of an international academic mission is to raise local awareness about structure—learning by doing, so the event on sexual rights and LGBTI rights. The Yogyakarta Principles were international standards protecting the experiences could be more easily integrated into the training modules. human rights of lesbian, gay, bisexual, internalised. Those who attended Particular attention was given to Principle and transgender people, and to the workshop had the opportunity 2, The Rights to Equality and Non- encourage the Venezuelan government’s to identify with gays and lesbians, to Discrimination; Principles 5, The Right adherence to those standards. It provides stand in their shoes, and that made to Security of the Person; Principle 19, legal advice, engages in advocacy, and them reflect in a different way about The Right to Freedom of Opinion and offers human rights trainings to various their own biases. Expression; and Principle 22, The Right government departments. The Outcome to . In 2006, the National Ombudsperson Participation by the police officers UAF has based its work on the tenets of Office (NOO), the government agency showed a marked development of co- human rights since it began operation in Venezuela designated as the national operation over time. In the beginning in 2000. The Yogyakarta Principles implementer of human rights norms, there was some resistance from a minority provides the organisation with a means of began developing human rights training of participants. Some choosing to leave referencing the applicability of all human programmes for police personnel as altogether, while others slouched in their rights to the LGBT community whom they well as for the staff of the Attorney chairs, wearing their sunglasses and served, in a way that carried authority. General’s Office and the Defence clearly showing contempt for the process. Counsel Offices. UAF was invited to Most, however, were open and those teach sessions on “Sexual Diversity who initially showed resistance eventually and International Protection”. developed a more positive attitude. Crucially, they became receptive to the The Action idea that people whose sexuality differs In 2006, UAF helped train 800 police from the norm are equal citizens, and officers from Caracas. In 2007, about the fact that the State has responsibilities 120 staffers from the Attorney General’s towards them was firmly established. and Defence Counsel Offices took part in the trainings, which were organised According to UAF, the trainings were a as workshops to allow for maximum measurable success in terms of reported When the Principles came up, I felt as if I had written them myself: the content was participation. Participants engaged in incidents. The organisation reports that the same that we have been circulating all these years! I have always emphasised role-play, during which police officers the NOO documented a reduction in the number of incidents of abuse against the ethical component in human rights and the Principles reinforce the principles of assumed the role of a member of the the interdependence, indivisibility, and universality of human rights. LGBTI community and tried to understand gays and travesties by police—from 15-17 monthly down to 3 in a seven- the experience. José Ramón Merentes, Venezuela 118 119 Section 3 The Yogyakarta Principles in Action Section 3 The Yogyakarta Principles in Action

Educating the public Sasod, Guyana establishment even to entertain an open endorsement of discrimination, SASOD The Context acted quickly through the media. On Social change for LGBTI people will only be achieved when the March 24, SASOD submitted a detailed public is persuaded that LGBTI people have human rights. These Guyana’s colonial-era criminal code, letter to the editor of the Stabroek News, like other British legal legacies across which was published on March 26. case studies describe the use of the Yogyakarta Principles in the Caribbean, criminalises “buggery” media, as part of campaigns to document and raise awareness and “acts of gross indecency” between Only days earlier, the Yogyakarta Principles men. The existence of the legislation had been formally launched at the UN about human rights violations, and as an element in a creative contributes to an atmosphere of Human Rights Council in Geneva. The visual arts project. against LGBT people. letter began with a four-paragraph Homophobia is rife in Guyanese popular invocation of the Yogyakarta Principles, culture, including through Caribbean explaining their goals and their status music that promotes and praises violence as a summation of international law. against gay men. SASOD then called on the government and the Teacher’s Union to implement the The Society Against Sexual Orientation Yogyakarta Principles, particularly Principle Discrimination (SASOD) [www.sasod.org. 12 (The Right to Work). The letter brought gy] is a Guyanese organisation founded the Principles home by recalling that the in 2003 to work toward the eradication International Commission of Jurists, of of discrimination on the grounds of which Guyanese legal luminary, Sir Shridath sexual orientation and gender identity, Ramphal, is an honorary member, took part and to promote the rights of lesbian, in the development of the Principles. gay, bisexual, and transgender (LGBT) people in Guyana, the Caribbean, the The Outcome Americas, and around the world. SASOD is a small group working in a challenging The letter was an inexpensive and easy environment. Their work is made more way to get access to Guyana’s mainstream difficult because fear prevents many gay press. One goal was to expose the and lesbian Guyanese from coming out. position of the government and of the This in turn makes it difficult to gather Teachers Union as sponsors of the debate documentation of abuses that could be and their disregard for the rights of used to gain publicity and support. lesbian and gay teachers in Guyanese schools. The debate went ahead, but The Action the letter stimulated the broader public discussion about the appropriateness In March 2007, the Ministry of Health, of the debate itself. SASOD received the National AIDS Programme, and the considerable support from other NGOs Guyana Teachers’ Union announced because of the publication of the letter. a debate on the topic: “Teachers who are homosexual/lesbian should not A more recent newspaper editorial of be allowed to teach”. Shocked by the February 2009 in the Kaieteur News willingness of the country’s HIV and AIDS illustrates a powerful impact of the 2006

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SASOD letter. The editorial criticised a As well drawing attention to Principle 12, Sangama, India first by forming the Coalition for Sexuality series of crackdowns against male-to- The Right to Work, SASOD in its letter Minority Rights. The first report of the female transgender people for cross- urged the Guyanese Teachers Union to The Context illegal detention of a kothi came only dressing in downtown Georgetown, comply with Additional Recommendation after the distribution by the Coalition of Guyana’s capital city. Authoritatively citing M, which is addressed to a range of Sangama (www.sangama.org), based thousands of leaflets in cruising areas, the Yogyakarta Principles, the editorial professional bodies and calls on them to in Bangalore, India, is a human rights drawing attention to the rights of sexual condemned the violence against the review their practices to ensure that they organisation working with and on behalf of minorities and providing a contact transgender people that lead to the arrests comply with the Yogyakarta Principles. sexual minorities, especially from poor and number in case of police harassment. and called for the recognition of rights for non-English speaking backgrounds, as well This first case not only went to court but LGBT people. as sex workers, who have became the focus of a capacity- and otherwise little or no access to information confidence-building campaign that The Application of the Yogyakarta and resources. A goal of the organisation empowered the community to come Principles is to bring sexuality, , and forward to report further abuses, assured gender identity into the public discourse that action could be taken. Using the Yogyakarta Principles helped and to create links to gender, human rights, strengthen SASOD’s case in several ways: and other social movements. The hijra and Sangama documented each violation in kothi communities have been the victims of detail and, where the victim was willing, • It framed SASOD’s objections to persistent violent attack at the hands of the publicised it widely in Bangalore and the debate as a human rights issue police authorities in Bangalore. In tandem secured legal counsel to pursue remedy using the Principles to establish its with this, the police have failed to protect for the violations. In addition, through a argument. both communities from attacks by others in national and international campaign they • It placed the government and the society. Sangama has sought to respond to put out a call for letters to the Karnataka Guyana Teachers Union in the position the needs of this community. State authorities, demanding action of ignoring accepted international against the perpetrators. Public rallies, human rights standards. The Action condemning the torture and rape of hijras • It employed the Principles to Documenting violations of human rights is and kothis, were organised, and thousands present SASOD as part of a world- of flyers both in English and Kannada wide human rights movement, an important element in Sangama’s work. This practice demands a variety of skills naming the police officers responsible supported by important experts and calling for their suspension were and institutions, which helped on the part of those collecting data, one of which is the ability to instil trust in the distributed. The media covered these legitimise the organisation, but also protests and spread the word that police potentially offered some protection people whose rights have been violated. This is particularly crucial in relation to officers could no longer enjoy anonymity from violence, discrimination, and as well as impunity for abuses. harassment. extreme physical violence and rape. The reluctance of victims to come forward and speak out is further compounded Finally, the stories Sangama had collected when those in positions of authority and were compiled with the help of a power—such as the police—have been mainstream human rights organisation the perpetrators. In seeking to build its (People’s Union for — capacity to take on these challenges Karnataka) into a human rights report. The and to bring forward cases that could be weight of the assembled stories proved prosecuted in court, Sangama began by that these were not just isolated incidents, building a strong community network, but part of a pattern of arbitrary arrests

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based on sexual orientation and gender and then detained Sangama workers Campaign Against demonstrations. On the positive front, identity in Bangalore. who had come to the police lockup the era of banning Pride parades in to assist them, over one hundred Homophobia (KPH), Poland Poland is over and a planned ban on Outcome fifty human rights activists in the “homosexual propaganda” in Polish city—including lawyers, women’s schools has been scrapped. Nevertheless, The campaign sent a message that The Context rights advocates, Dalit groups, and it remains difficult to introduce any anti- human rights violations against the others—gathered to . Many A national survey carried out and homophobia material in schools. hijra and kothi communities would were arrested as well. published by KPH and Lambda Warsaw not be suffered silently but would for the years 2005/2006 reveals that Campaign Against Homophobia (KPH) be responded to. Raising the issue The Application of the Yogyakarta 17.6 % of the lesbian, gay and bisexual was established in 2001. Its work has at local, national, and international Principles respondents experienced physical grown to cover a number of crucial areas: levels meant that the State had to violence and of these 41.9 % were legal support for individuals and lobbying respond to the rights violations and When documenting human rights subjected to violence on three or more for legal change at both national and could not ignore them as before. violations, the structure of the Yogyakarta occasions. Eighty-five per cent of the international level; training programmes Principles provides a good resource. First, cases were not reported because of a for the LGBTI population; public Sangama’s work can also be the Principles explain what each human lack of confidence in the police and also education campaigns and, more recently, measured by the alliances it has right entails with regard to persons of because of the fear of further repression. training targeted to the police force; helped the organisation build with diverse sexual orientations and gender Hate speech against people of diverse and research, documentation, and other human rights groups and identities. Secondly, the Principles outline sexual orientations and gender identities monitoring carried out in collaboration social movements in Karnataka. States’ obligations corresponding to each is a daily occurrence in the print and with Lambda Warsaw. Documentation not only helps right, which provides the context for what broadcast media in Poland. pressure state authorities and other governments must do to address such The Action responsible parties; by establishing rights violations. The Polish Constitution prohibits the seriousness of human rights discrimination on all grounds. Nevertheless, - Yogyakarta is a series of twenty violations and giving prominence to In many circumstances, documenting in 1995 a proposal for the inclusion posters using archival and contemporary the voices of survivors and victims, it rights violations can be a dangerous of a prohibition on grounds of sexual photographs of LGBTI people from the late can help persuade other civil society activity. Yogyakarta Principle 27, the Right orientation in the Constitution was nineteenth to the early twenty-first century. actors to join in alliances to end to Promote Human Rights, affirms the rejected, after strong opposition from the Accompanied by text, these posters depict these abuses. It can also reveal links right of individuals and groups to engage Catholic Church. The Constitution states a story of early acceptance of gays in and similarities to the persecution in such activities and their entitlement to that marriage is restricted to a man and a Berlin, the horrors of the persecution of that other groups and identities the protection and support of the State. woman, thus making the possibility of any homosexuals during the Nazi regime, and confront. For example, in 2008, when movement toward civil partnership very the hope represented by the Yogyakarta Bangalore police arrested five hijras remote. Poland initially opposed the EU Principles as evidence of progress toward Human Rights Charter, primarily because of rights for LGBTI people. Article 21 prohibiting discrimination on the grounds of sexual orientation. It has more The exhibition begins with Magnus recently lifted its opposition to the Charter Hirschfeld, founder of the first association but continues to stall the implementation for homosexuals, who in 1898 led a of EU anti-discrimination legislation. campaign to repeal the law criminalising There shall be no impunity for perpetrators of human rights violations homosexuality in Germany. The campaign related to sexual orientation or gender identity. In recent years, the parades was not successful, but the association have been either repeatedly banned gained 5000 members within eight Principle 29, The Yogyakarta Principles on the Application of International or confronted with hostile counter- years. Toward the end of the exhibition, Human Rights Law in Relation to Sexual Orientation and Gender Identity. 124 125 Section 3 The Yogyakarta Principles in Action Section 3 The Yogyakarta Principles in Action

Poster 19 gives the text of Principle 25 Poster 7 is titled “Persecution of It traveled to Kraków in April and Lodz of the Yogyakarta Principles (The Right Homosexual Women” and shares the in May 2010. The exhibition and the to Participate in Public Life) alongside a story of Lotte Hahm, president of the accompanying brochure are being photograph of the mayor of Berlin with Damenklub Violetta, who was sent to translated into English, and KPH has his long-term, same-sex partner and a a concentration in 1935. Elsa requests for the exhibition from groups in public statement he made before his Conrad who was half Jewish, the owner and Liverpool, as well as first election to office in 2001: “I am gay of a women’s club and a lesbian activist in Warsaw in July 2010. and that is good.” Also in Poster 19 is a was sentenced to 15 months in 1935 photograph of Johanna Sigurdardottir, and again in 1937 for an unknown The Application of the Yogyakarta Prime Minister of Iceland, the first openly period of time. One of the photographs Principles (gay) lesbian elected head of national shows Lilly Wust and her partner Felice government. Schragenheim at a lake outside Berlin, The concept for the exhibition grew out a few hours before Felice was arrested of a desire to draw the public’s attention, In between, the posters trace the by the Gestapo in August 1941. (It is as well as that of the LGBT community, to history of the fall from grace of the gay important to note that the women were the persecution of homosexuals during movement in Berlin, the beginning rarely persecuted solely because they the Nazi regime. The concept was given of the homophobic vitriol and the were lesbian and that Felice was arrested a frame of reference when KPH became harassment, detention, and for some because she was Jewish and an activist of aware of the Yogyakarta Principles. The death, of gay men in Sachsenhausen the Jewish resistance.) sponsors to the project, Stiftung EVZ, a concentration camp. Poster 9 is titled German Human Rights Foundation, were “Timeline of Terror”, and it begins in The Outcome very happy with the idea of using the 1934 with Heirnrich Himmler’s edict that Yogyakarta Principles as the framework for The exhibition was designed as an all homosexual men be registered, and the exhibition. educational tool. Among the target continues from there to 1937, when audiences to date are middle and high homosexual people were categorised There are resonances between the school teachers and university students as public enemies, then to 1941 when, forgotten persecution of homosexuals and professors. It was first shown in in the interests of “the maintenance in Nazi Germany—despite so much October 2009 for three weeks at the of cleanliness”, orders were given for remembering of the horrors of that prestigious University Library in Warsaw members of the SS who engaged in regime—and the unacknowledged where 500 brochures and 200 copies of homosexual acts to be shot. The final rights for LGBTI people by those who the Yogyakarta Principles (translated into date in the timeline is 1945, when deny the applicability of international Polish) were distributed. It was also shown the police department dealing with human rights law to LGBTI people. The in Lublin, Wroclaw, and Gdansk. homosexual people was reinstated. Yogyakarta Principles reveal the full authority of international human rights law as it applies to people of diverse sexual orientations and gender identities. Berlin - Yogyakarta juxtaposes the historical with the contemporary and traces a journey of The library personnel, who might have been reluctant to give space for an struggle and perseverance. exhibition dealing with LGBTI people, were more open when they saw the relationship between the discrimination suffered by LGBTI people and the persecution suffered at the hands of the Nazi regime.

Katarzyna Remin, Author and Project Manager of Berlin - Yogyakarta 126 127 Section 3 The Yogyakarta Principles in Action Section 3 The Yogyakarta Principles in Action

Building a movement 07-07-07 Campaign, right to expect protection from violence, from wherever that violence emanates. South Africa The State must protect all its citizens Recruiting allies, empowering individual LGBTI people, choosing equally and that includes its LGBTI priorities – all of these are necessary to building an LGBTI The Context citizens. Indeed, it is obliged to create an environment that actively protects LGBTI movement. These case studies are examples of how activists have On July 7, 2007 two young South people from bodily harm and ensures African lesbians, Sizakele Sigasa and their security of person. used the Principles to build confidence amongst LGBTI people Salome Massoa, were brutally murdered about asserting their rights, reach out to non-LGBTI human rights in Soweto. They were raped, tortured, The Action groups to support campaigns, and identify rights violations in order and shot execution style; Sizakele was shot six times in the neck and head A national coalition of South African to form community priorities. and Salome once in the back of her LBGTI, HIV, and women’s rights . This horror became a particularly organisations responded by launching well-publicised example of a pattern the 07-07-07-Campaign. The campaign— of violence that South African lesbians named for the date of the killing— say pervades their lives. Many other attempted to turn the anger of activists lesbians, their names well known among and community members into an human rights defenders in South Africa, organised call for legal action and political have been murdered. The killers of change. Its goal is to bring an end to Zoliswa Nkonyana and Eudy Simolane hatred against LGBTI people. have gone to trial; many others remain unprosecuted. South Africa has one of the highest rates of sexual assault in the world. The And this despite South Africa having one campaign’s first challenge was to remind of the most progressive constitutions a public saturated with stories and fears in the world and one of very few that of rape that particular communities expressly prohibits discrimination on within the general crisis have particular the grounds of sexual orientation. Yet, vulnerabilities. The campaign held a as noted in the 2003 Human Rights series of public meetings and protests Watch report, More than a name: across South Africa to build awareness State sponsored homophobia and its of how violence against LGBTI people consequences in South Africa, “Law persists in spite of a progressive and litigation have not filtered down constitution. The hope was to mobilise to the level of everyday life. The fact communities and the general public to of prejudice against lesbian, gay and pressure government officials to prevent bisexual, and transgender people and punish such violence. persists, and the State has done little to counteract it”. The campaign advocates for more effective and community-sensitive Homophobia, and the violence it can policing in townships and rural areas; cause, is deeply rooted as much in society more efficient and faster investigations as in State practice. Everyone has the and prosecutions; disaggregation of

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official statistics so that more information constitution and the implementation of constitutional inclusion. One township- police authorities to whom they report the about the scope of hate crimes based of human rights on the most basic based campaigner pleaded, initial act of violence. Principles 28 and on sexual orientation and gender level”, one participant explained. A 29 deal extensively with the right to laws, identity can be known; and legislation strategic goal of the campaign is to put It is vital to be visible and to mobilise systems, and processes whereby people expressly punishing crimes motivated by structures and programmes in place the community, because women’s of diverse sexual orientations and gender hate, including hatred based on sexual so that incidents of hate- and gender- livelihoods are being compromised identities can report rights violations orientation and gender identity. based violence against black lesbians in and lives are lost on a daily basis. Let in safety and without risk of further townships and rural communities can be this not be a campaign on paper, but victimisation. Offences cannot be ignored, From the beginning, the campaign’s reported and victims can be supported. a campaign that will be an active voice regardless of who the victims are; all materials and manifesto cited the for the most vulnerable and violated. crimes must be investigated using the full Yogyakarta Principles so as to underline resources of the State on an equal basis, There has also been a good deal of South Africa’s obligations under The Application of the Yogyakarta enabling all citizens, including people of opposition, and the campaign has been international law to protect LGBTI people. Principles diverse sexual orientations and gender hindered by an atmosphere of silence identities, to obtain satisfactory redress. and shame that surrounds both issues of The Outcome The Yogyakarta Principles, then, are sexual orientation and sexual violence in a reminder not just of statements of The impact of the campaign has been many South African communities. Such principle, but of the State obligations most visible on two fronts. First, the an environment has made documenting and concrete actions needed to campaign has built solidarity among a cases difficult. Moreover, activists face translate principles into practice. Just range of activists and reinvigorated public a situation where, despite the clear as the promise of equality in South activism. There have been powerful public message of the constitution, prejudice is Africa’s Constitution must be backed by protests held in four major cities and a reinforced at the highest political levels. meaningful policies and programmes range of resources and supports put in to address homophobia, , place to sustain the campaign through a Perhaps the most important effect and , so too the Yogyakarta long, protracted appeal for justice. of the campaign so far has been in Principles seek to translate statements giving training and direction to a new of principle into concrete action, by Documenting the prevalence of violence generation of LGBTI activists. Many detailing the measures States must take against lesbians is a key tool in the LGBTI people and leaders had turned to give effect to their legal obligations. campaign. The aim is to draw attention away from activism following the These measures include police training, to “the disparity between a progressive overthrow of and the success protection from hate crimes, public education, and other initiatives called for by the 07-07-07 Campaign.

In its ongoing work the campaign focuses The impact of the campaign has been most visible on other issues besides the murder of lesbians. The incidence of curative rape— on two fronts. First, the campaign has built solidarity that is, where the rapist rationalises his among a range of activists and reinvigorated public crime in terms of attempting to “cure” activism. There have been powerful public protests lesbians of their attraction to other women—has grown sharply. So too has held in four major cities and a range of resources and the matter of secondary victimisation, supports put in place to sustain the campaign through which refers to the physical and verbal a long, protracted appeal for justice. harassment meted out to women by the 130 131 Section 3 The Yogyakarta Principles in Action Section 3 The Yogyakarta Principles in Action

Meem, Lebanon Meem was launched on August 4, 2007 activism. On one level this means skills awareness. Their strategy is one of slow with the vision of a better quality of life training in communications, teamwork, movement building, both within their The Context for lesbian, bisexual, & questioning campaigning, leadership ,and so on; own membership and by networking with women and transgender persons in and, importantly, on another level it women’s and human rights organisations, Lesbian, bisexual, queer, and questioning Lebanon. The handful of founding means education and awareness-raising producing online awareness campaigns, women and transgender persons (LBTQ) members saw the need for a group about the of other forms and building gay-straight alliances. in Lebanon still face incredible challenges focused on women and transgender of oppression. To this end there are legally, socially, and personally. They know people within the overall gay community workshops on gender identities, queer They are conscious that the political well what to expect in a society steeped in order to create the opportunity for theory, , religions, minority and security conditions of recent years in , where female sexuality LGTQ women to empower themselves rights, and other topics. And because in Lebanon can paralyse any advocacy should be at the service of males. They and each other through mutual support. Meem’s goal is to situate their work for project that aims to advance human rights, are ostracised by families and in the recognition and rights for LBTQ women and LBQT rights in particular. They are workplace and often face harassment and The Action within a broader framework of human also aware of what they see as the implicit blackmai from police forces. When young rights for all, there are workshops also silencing within activist coalitions of issues In effect, the action is the creation of women come out to their families, they on political lobbying, legal reform, and relating to diverse sexual orientations and Meem, which has provided the space are often locked in their rooms (sometimes different forms of governance. gender identities in the interest of other and opportunity for the empowerment for months), taken out of school, and issues. Favouring one cause over another of LBTQ women in Lebanon. The sometimes kicked out of their homes. With over three hundred members and a encourages a hierarchy of acceptance and careful, strategic planning initiated and Many young LBTQ women have no choice commitment to a volunteer-run, weekly discrimination within society to emerge. negotiated by the growing membership but to hide their sexual orientation or magazine, Meem published Bareed Meem tries to operate on the basis that has been, and remains, focused on gender identity in order to maintain their Mista3jil, a collection of forty-one true as Arabs, as well as queer women and building membership capacity toward livelihood and secure their education. stories by and about LBTQ persons in transgender persons in Lebanon, they Lebanon, in May 2009. The objective do not separate themselves from other behind the book is to raise awareness movements but seek to situate their about and increase the visibility of lesbian, causes within the larger frameworks of bisexual, queer, and questioning women sexual and bodily rights, women’s rights, and transgender people in Lebanon. The and human rights in general. There is much mystery and fantasy surrounding the concept of female sexuality book has been a huge success; with over in Lebanon. Even more taboo is the topic of homosexuality, and a lot more has 4000 copies sold to date, it continues They recognise that when they been said about male homosexuality than female homosexuality. This comes as to generate positive articles in national advocate for protection from violence no surprise in a patriarchal society where women’s issues are often dismissed. and international press and has reached against women (a draft law that local And sexuality, because it touches upon reclaiming our bodies and demanding the the top ten best sellers list at Virgin NGO Kafa is focusing on), they are right to desire and pleasure, is the ultimate taboo of women’s issues. We have Megastore. It is available in both Arabic also working towards ensuring that all published this book in order to introduce Lebanese society to the real stories of real and English online, in popular venues, and women, including queer women, are people whose voices have gone unheard for hundreds of years. They live among in bookstores. protected from domestic violence. When us, although invisible to us, in our families, our schools, our workplaces, and our they support the Right to Nationality neighborhoods. Their sexualities have been mocked, dismissed, denied, oppressed, distorted, and forced into hiding. The Outcome campaign, they are also advocating the right for queer women to bear children The outcome of the action is the and have them officially recognised as From the introduction of Bareed Mista3jil, a brave new book published by Meem growth of a movement. Meem is in Beirut, Lebanon. The book, available in both English and Arabic versions, is a Lebanese citizens (which is currently not committed to a long-term vision of collection of forty-one true (and personal) stories from lesbians, bisexuals, queer, possible in Lebanon, as even straight work on advocacy, lobbying for legal and questioning women and transgender persons from all over Lebanon. Go to women cannot pass on their nationality to reform, and campaigning to raise public www.bareedmista3jil.com/about.htm. their spouses and children). They see it as 132 133 Section 3 The Yogyakarta Principles in Action

essential that they support and bring their local activists can contribute to the process. perspective to any ongoing campaign that For Meem, the Principles will be used, first advocates for human rights, as abuses and foremost, to empower its members. In of human rights usually affect women— line with their cautious strategic approach, queer or not—the most. they plan to brainstorm and assess other ways to utilise the Principles when their There is also Article 534 of the Lebanese initial goal is reached. Penal Code that criminalizes “sexual acts against nature” and promotes general hatred towards LBQT people in Lebanon. This article, while not commonly used to persecute queer women, still constitutes a perpetual menace used to intimidate LGBT individuals, to justify the illegitimacy of their sexualities, to silence and threaten them throughout their lives. Meem’s activities, while not necessarily focused on the project to have article 534 abolished, do contribute to that goal by demonstrating the vibrancy within the movement and raising awareness about the real lives of lesbian, bisexual, queer, and questioning women and transgender persons in Lebanon.

The Application of the Yogyakarta Principles In the work to build the capacity of the members to engage in human rights activism, Meem is excited about the opportunities for learning available through the Yogyakarta Principles. For Meem, the Principles represent an opportune tool in its overall programme of activist training. In the first instance, the Yogyakarta Principles’ comprehensive and inclusive treatment of the application of international human rights law to the lives of LBQT people makes it an invaluable one-stop resource. It is also the ideal springboard to a deeper exploration of how human rights are implemented and monitored and of how

134 135 SectionSection 1 4 ApplyingThe Yogyakarta Principlesthe - Overview and Context Yogyakarta Principles

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So far this Guide has pointed to a number may use it without explicit reference Activists and individual LGBTI people are of ways in which activists can use the to international law. Other activists use the engine of social change for the LGBTI Yogyakarta Principles as a tool or resource the language, and organise their work in their day-to-day work. The case studies according to the principles upon which community. Anyone who acts peacefully for in Section 3 give details of a variety of rights have been formulated. Over effective and inventive uses. recent years more and more activists the promotion and protection of human have adopted what has become known Other examples are presented more as a human rights-based approach to rights is a , and is briefly, whether in sidebars or in the their work, a core facet of which is to Up Close section on page 39 to illustrate talk about the rights LGBTI people are recognised as such by international human the application of the Principles, and entitled to, rather than their needs. there are passing references to yet rights law. Even if you have never before more examples. Hopefully, through the So, there are a number of ways to discussion of the mechanisms associated think about human rights and to work engaged with human rights advocacy, taking with international law, other potential toward their realisation. Similarly up the Yogyakarta Principles makes you a uses will have emerged. there are many ways to work with the Yogyakarta Principles. The promotion human rights defender. The promotion of the Yogyakarta of the Yogyakarta Principles does not Principles is about making life better for require working within the human rights people of diverse sexual orientations and system or adopting the language that gender identities. LGBTI activists around goes with that. It does not mean having the world employ a range of approaches to know what the treaties are, nor their to accomplish their goals. Whether functions, how often countries have to it is providing social opportunities or report on their progress, what is meant healthcare services, advocating to end by progressive realisation, or any other bullying in schools, mounting a legal technical detail. challenge to discriminatory laws, or working with government officials to It is enough to know that the Yogyakarta secure the release of people jailed Principles on the Application of because of their sexual orientation or International Human Rights Law in gender identity, activists share a common relation to Sexual Orientation and Gender goal in working to make things better for Identity is an articulation of international the people in their communities. law and that it sets out the obligations governments face in order to ensure All these activities focus on enhancing that LGBTI people live their lives freely the potential for people to realise their and enjoy the same rights and dignity as human rights. Activists may not use everyone else. the language of human rights, or they

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Larger questions inevitably present Potential Applications No. 1 > Knowing the scope of the application themselves and demand answers: Brief Up on the Yogyakarta Principles This section outlines four broad of the Principles in relation to one or applications. The order in which they more areas, e.g., health, promoting > How specifically do the Yogyakarta are presented represents a suggested I. Two levels are suggested here. human rights, freedom of assembly, Principles relate to human rights law? sequence: gender identity, and others > How do they apply where I live, to the A. The Yogyakarta Principles - Basic > Being aware of how the Principles law and culture of my country, and to No. 1 The aim at this level is to be able have been received and applied by the realities of life of the people our Brief Up on the Yogyakarta Principles to give a succinct, comprehensive national equality bodies, international organisation serves? (the starting point) description of the Principles. To be monitoring committees, national able to answer the following basic governments, NGOs, academics, > Are they comprehensive? No. 2 questions: and others > What is likely to be the response from Reference & Disseminate the Yogyakarta > Knowing how other LGBTI activists officialdom? Principles (relatively easy) > What are the Yogyakarta Principles? have responded to the Principles > How can I get other NGOs with whom No. 3 > How and when did the Yogyakarta > Knowing the critiques and criticisms we work to endorse the Principles? Yogyakarta Principles Principles come into being? Integrate the of the Principles (requires some organisational reflection) > How do the Principles relate to > Understanding the limitations of In short, how can I make the most of international and regional human No. 4 the Yogyakarta Principles and of the the Yogyakarta Principles in the work rights treaties? Yogyakarta Principles limitations of international human that I do? Strategise the (involves strategic analysis of the wider > How do the Principles apply where I rights law. environment) live and to the law and culture of my country? This level of knowledge will enable > How do the Principles apply where I you to: live and to the realities of life of the > Be equipped for other approaches people our organisation serves? > Enhance community empowerment

B. The Yogyakarta Principles - > Build internal capacity Advanced > Consider working with other Depending on time and resources, LGBTI groups and other NGOs in the aim at this level will include: developing awareness

> Becoming familiar with the > Demystify, if that is what is needed, jurisprudence and other components the language and mystic about the of international human rights law human rights system upon which the Yogyakarta Principles > Learn how international law has are based advanced LGBTI issues, where the The promotion of the Yogyakarta Principles is opportunities exist and where the about making life better for people of diverse road blocks are sexual orientations and gender identities. 140 141 Section 4 Applying the Yogyakarta Principles Section 4 Applying the Yogyakarta Principles

> Learn how activism and advocacy No. 2 No. 3 In determining how the Yogyakarta has influenced progress in Reference & Disseminate Integrate the Yogyakarta Principles Principles can enhance the work that international law you do, the following questions might be useful: > Use the knowledge as a springboard The goal is to cite the Principles as often This will require some reflection within as is appropriate: your organisation to: for other Yogyakarta Principles – > How can integrating the Yogyakarta related activities. Principles enhance the objectives > In submissions to government > Identify an objective for you have already established in each departments and State agencies integrating the Yogykarta stand of work? In briefing up, you might want Principles into your work to consider: > In meetings – with service providers, > In terms of broader organisational with policy-makers, with other NGOs > Determine which Principles goals—developing broader coalitions, > and human rights defenders, etc. are most relevant to what you do Focusing on a selected number of leveraging funding, deepening the Principles, perhaps those most > In shadow reports to international > Assess your capacity – partnerships with State agencies, relevant to your work bodies time, money, talent increasing membership—what role > can the Principles play? Planning a number of sessions, > In newsletters and press releases. > Assess and identify the resources with different members of staff needed to integrate the > Does working with the Principles and/or volunteers taking on Yogyakarta Principles present any new objectives that can In terms of dissemination, think of: responsibility for different sections be readily integrated in the existing > Consider if and how a human > workplan? Inviting human rights academics to > Seeking funding for translation rights based approach would address your organisation enhance your work. > When it comes to a new strategic > National Human Rights and Equality workplan, how can the Principles > Inviting, if possible, one of the Bodies inform that plan and what needs to be signatories to the Principles. Most LGBTI organisations are engaged > Posting the Principles on your website done to accommodate that process? in one or more of the following strands > Writing articles for relevant of work: publications > Legal – individual/group support and/ > Strategic selection from mailing list for or strategic litigation receipt of hard copy > Training > Public fora – seminars dealing exclusively with the Yogyakarta > Lobbying Principles, as well as presentations at > Service Provision broader-focused conferences > Public education and awareness. > Preparing summaries or selected excerpts for distribution to selected target groups within LGBTI population

> Brainstorming other creative, outside- the-box ways of communicating the Principles.

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No. 4 How would an endorsement be Conclusion and Resources Information about international human Strategise the Yogyakarta Principles demonstrated—for example, rights bodies, copies of treaties, and Activists and individual LGBTI people are as training for State agencies, information about the human rights the engine of social change for the LGBTI dissemination to equality bodies, situation in all countries can be accessed This approach asks you to think of ways to community. Anyone who acts peacefully translation, implementation by through the website of the office of the apply the Principles beyond the day-to-day for the promotion and protection of government departments, United Nations High Commissioner for work of your organisation. This will require human rights is a human rights defender, or some other way? Human Rights. (www.ohchr.org) examining the environment in which you and is recognised as such by international work. If No. 3 Integrate the Yogyakarta human rights law. Even if you have never A copy of the Yogyakarta Principles Principles involves inward reflection, No. Unplanned Activities before engaged with human rights in each of the official languages of the 4 Strategise the Yogyakarta Principles advocacy, taking up the Yogyakarta As some of the case studies in the United Nations (English, French, Spanish, involves looking outward to assess the Principles makes you a human rights previous section demonstrate, it is not Russian, Arabic, and Chinese) can be strengths, weaknesses, opportunities, and defender. As stated by the 1998 United always possible to plan ahead. Often, found at the (www.yogyakartaprinciples. threats of the broader environment within Nations General Assembly Declaration on we are presented with such egregious org). which you work. This will take time and Human Rights Defenders, everyone has human rights violations that, even if it resources and may involve a wide range of the right to advocate for human rights, is outside of what we normally do and The Jurisprudential Annotations to stakeholders—members, board, funders, including the right to discuss and develop even if we consider that we do not have the Yogyakarta Principles, providing peer organisations, institutional partners, new human rights ideas. The Declaration the capacity, we have to respond and information about the legal standards on and others. imposes on States the duty to protect respond immediately. Such was the which each Principle is based as of the human rights defenders and to support case in South Africa with the 07-07-07 time the Principles were adopted, can be Considerations might include: their work. When you undertake activities Campaign, initially a response to the found on the website of the Yogyakarta discussed in this Guide, not only do you murder of lesbians; and in Nepal with the Principles. (www.yogyakartaprinciples. > Is there an issue around which a legal create change, but you become a valued continuous harassment, detention, and org/yogyakarta-principles- strategy can be built in the context of part of the international human rights cruel treatment of the metis, the time was jurisprudential-annotations.pdf) which the human rights principles laid system that operates for the benefit of ripe for challenging the law. out in the Yogyakarta Principles can all people. Demanding credibility and sustaining play a supportive role? Sometimes opportunities present activism: a guide to sexuality-based As you carry out activities to implement > Can you play a role in developing themselves—the introduction of a new advocacy, Global Rights (2008), provides the Yogyakarta Principles, share your training on the Yogyakarta Principles law or regulation that is discriminatory; an overview to sexual rights, discussion activity with other activists. Visit www. to lawyers, police, service providers, an invitation to be part of a consultative on how to advocate, and a thorough ypinaction.org, where you can submit a etc? group on multi discrimination; an Appendix listing organisations, advocacy description of your activity to be posted opportunity to appear on television, manuals, international human rights > How can you engage with the UN along with other stories of activism. While to present a paper at a conference, or source materials and a listing of recent system, via the Universal Periodic there, you can see how the Principles are to contribute to the development of a LGBTI reports. (www.globalrights.org/ Review, shadow report to treaty being used by others, view numerous training course. Similarly with strategising site/docserver/guide__sexuality_based_ bodies, in coalition with others, other unofficial translations, and about the Yogyakarta Principles, initiative.pdf) making contact with Special download a digital version of this Guide. opportunities will present themselves that Rapporteurs, etc.? simply cannot be planned for. Being ready > If thinking of asking the government, to make the most of those opportunities a State agency, or other organisastion can be achieved by deepening your to endorse the Yogyakarta Principles, knowledge of the Principles. consider what that would mean.

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Practitioners guide no. 4 – sexual Sexual Rights: An IPPF Declaration, orientation, gender identity and International international human rights law, Federation (2008), represents the International Commission of Jurists culmination of more than two years (2009), explains how international law of work that spanned the globe. and standards can and should be used to The Declaration developed through provide victims of human rights violations, regional meetings and events that on the grounds of sexual orientation or took place across the Federation and gender identity, the protection to which built on the IPPF Charter of Sexual they are entitled. (www.icj.org/dwn/ and Reproductive Rights. (www.ippf. database/PractitionersGuideonSOGI. org/NR/rdonlyres/9E4D697C-1C7D- pdf) 4EF6-AA2A-6D4D0A13A108/0/ SexualRightsIPPFdeclaration.pdf) Together, Apart, Human Rights Watch (2009), based on written surveys and Bringing Rights to Bear Anew: 2008 interviews with more than 100 activists Update, Centre for Reproductive working in the global south, outlines Rights (2008). Initially published in 2002, prevailing patterns of abuse against LGBT Bringing Rights to Bear takes a long, people in each of five regions as well hard look at the thousands of comments, as current activities being undertaken, statements, and recommendations sometimes without the support of funders produced by UN treaty-monitoring and the broader human rights community, bodies, analysing their potential for as well as opportunities for change. advancing reproductive rights. (www.hrw.org/en/reports/2009/06/10/ (www.reproductiverights.org/en/press- together-apart) room/bringing-rights-to-bear-anew- 2008-update) Claiming Rights, Claiming Justice. A Guidebook on women human rights Make it work: 6 steps to effective LGBT defenders, by Asia Pacific Forum human rights advocacy, ILGA-Europe, on Women, Law and Development 2010, presents a six-step model of (APWLD), foreword by Hina Jilani, UN advocacy that provides a logical structure Special Representative of the Secretary- and a set of methods, tools and skills for General on the Situation of Human planning and implementing advocacy Rights Defenders. The aim of this work. It is primarily concerned with how Guidebook is to assist women human and where LGBT human rights advocates rights defenders name the specific risks, in the domestic setting can employ violations, and constraints they face in international and regional human rights their work. It contains information on instruments to frame their arguments useful mechanisms to gain redress and and achieve their advocacy objectives. remedy and to protect women human (www.ilga-europe.org) rights defenders. (www.apwld.org/pb_ claiming_rights.htm)

146 An Activist’s Guide to The Yogyakarta Principles

The Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity

An Activist’s Guide to The Yogyakarta Principles