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Home , Stephen Whittle, Transgender, Transgender rights, Transgender sexuality, Yogyakarta Principles

How could the help improve the situation of people, when examined in the framework of existing bodies of international non- norms?

Alexandra PISA, ANR 835165 University of Tilburg International and European Public Law, Human Track

Supervising professors: S.J. Rombouts Stefanie Jansen

1 Table of contents

Introduction...... 1

1. Chapter I – A general view of the 'Yogyakarta Principles' …...... 1 1. What are the Yogyakarta Principles and what is their role?...... 3 2. What is their legal status?...... 4 3. What do the principles contain?...... 6 4. How were the Principles received by the international community?...... 8

2. Chapter II – Comparing the Principles with existing international legal norms...... 13 1. Are the 'Yogyakarta Principles' derived from existing international legal norms?...... 13 2. Why were the Yogyakarta Principles necessary in current international law?...... 21

3.Chapter III – Practical issues in light of 'Yogyakarta Principles'...... 27 1. Examples from the international jurisprudence and how were the matters resolved?...... 27 2. How could have the Principles contributed in these cases?...... 35 3. Would the Principles offer improvement?...... 39

4. Conclusion – Chapter IV – How would the Yogyakarta Principles help improve the situation of transgender people, when examined in the framework of existing bodies of international non- discrimination norms?...... 41

Table of sources...... 45

2 Introduction

When referring to human rights one thinks of all those universal, essential and most valuable rights. Initially protected solely by the Universal Declaration of Human Rights, time has shown, however, that this one document could not be sufficient to withhold all the needs of all the diverse types of people, as the world consists of a large variety of individuals, different in , ethnicity, preferences, religion and social background. Plenty social groups have found it difficult to have their rights recognized in front of the courts of law, as there were no specific legal provisions which applied to their particular situations. Thus, the problems faced by these groups, from a practical legal standpoint, demonstrated the fact that there was a lack of international legal norms, which would offer protection to all groups from women, to indigenous peoples, to different racial or ethnic groups, etc. The international community did respond in a positive fashion in assuring that all individuals, no matter their background or sex (referring here strictly to the discrimination faced by women, throughout the ), would have their rights protected. Nevertheless, the struggles in implementing these new provisions were numerous, most of them implying the reluctant attitude of States in accepting and applying these rights. An international body, for example, the United Nations, cannot impose rights upon States, without the States' consent. Thus, in order to have a new legislative document which produces legal obligations it must be signed by a number of States, as they are the only ones that can give binding character to any document, or convention. The struggles of these groups have pointed out that, “to be different to the majority in any society is to be vulnerable to , discrimination and even attack” 1, the same being true nowadays for the , , bisexual, transgender and inter-sexual community. One of the first documents to “address the uncertainty regarding the reach of the law” 2 in the case of this community and to give definitions for the terms '' and '' is the 'Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Identity'. This document was the outcome of a meeting that occurred in , in 2006, where human rights experts, judges, academics, UN rapporteurs and representatives of NGO's met to discuss the vulnerability of the LGBTI community (lesbian, gay, bisexual, transgender and inter-sexual community), and the numerous situations of discrimination based on sexual differences. They aimed, as

1 Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran, David Harris, 'International Human Rights Law' , , 2010, page 331 2 Ibid. 1, page 341

3 well, to find a way to combat these . Their purpose was to find a solution that will appeal not only to the UN, or NGO's, but, most importantly, to all States. In order to achieve this purpose, the document has a tripartite function. Firstly, it refers to all the human rights violations faced by people of diverse sexual orientation and and manages to underline their experiences with discrimination. Secondly, it focuses on the application of international human rights law to these discriminatory situations, not by articulating new principles of right, but by acting like a common denominator for provisions included in international human rights law. Thirdly, it “spell[s] out the nature of the obligation on States for implementation of each of the human rights” 3. This paper tries to see how effective the Yogyakarta Principles are in fighting the abuses faced by the LGBTI community, in particular . Based on a theoretical research, the paper aims to discover if the Principles can can be the bridge in the gap between law and practice concerning this social group and, eventually, offer improvement to the transgender society. Each chapter focuses on the different elements expressed in the central research question, with the purpose of reaching a well- rounded answer. In the first place, the role of the 'Yogyakarta Principles' is discussed, and along with it, the way it was received by States, international bodies of human rights law and NGO's. Further, a comparison between the Principles and provisions of several , binding and non-binding, will be included in Chapter II, comparison which will have the purpose of proving whether or not the Principles are based in already existing legal norms. Thirdly, test cases from national and international jurisprudence will be presented, and further analyzed in comparison with the Principles in order to demonstrate how could they have been resolved in a clearer and more efficient manner if the provisions of the Yogyakarta document were applied. Lastly, the central research question will be answered as best possible with the information presented in the first three chapters.

“It is likely that [the Yogyakarta Principles] will play a significant role within advocacy efforts and, whether directly or otherwise, in normative and jurisprudential development” 4 and an analysis of them is imperative in order to determine their worth, and to bring them closer to the public attention.

3 Ibid. 1, page 342 4 Michael O'Flaherty, John Fisher, 'Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles' , Human Rights Law Review, Vol 8:2, pag 207-248, 2008, page 207

4

Chapter I – A general view of the 'Yogyakarta Principles'

I 1. What are the Yogyakarta Principles and what is their role?

The Yogyakarta Principles are a set of principles on the application of international human rights law in relation to sexual orientation and gender identity. The Principles 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 fulfill that precious birthright. 5 They were developed in 2006 during a meeting of the International Commission of Jurists (an international human rights non-governmental organization) by human rights experts, judges, academics, UN rapporteurs and representatives of NGO's. The meeting occurred in Indonesia, on Java Island, at and it aimed to resolve the issues of discrimination and stereotype based on sexual identity or orientation. “But was this a UN meeting? No. Was it an academic meeting? No. Was it an NGO meeting? No. None of the above and all of the above” 6. These human rights experts wanted to discuss the numerous situations of discrimination based on sexual differences and aimed to find a way to combat them. Their purpose was to find a solution that will appeal not only to the UN, or NGO's, but, most importantly, to all States. It is common knowledge that human rights norms protect individuals from any kind of discrimination, including that based on sexual orientation or identity, but, while a number of these rights have been successfully implemented in national norms and internationally, rights protecting gender identity or sexual orientation had difficulties being implemented. Thus, the experts aimed to clarify this aspect and managed, during the meeting that occurred in Indonesia, to create a framework that would facilitate the implementation of rights which protect sexual and gender choices. To carry greater weight in human right law, the compilers decided to use the term 'principles'. There are no articles, no paragraphs, but 29 principles that States can properly understand and be bound to (or transform these intentional principles in national legal norms). The need for such a framework occurred due to the legal and procedural problems most LGBTI (lesbian, gay, bisexual, transgender, inter-sex people) suffered and, truthfully, still go through. In the

5 “THE YOGYAKARTA PRINCIPLES ,” 2006, http://www.yogyakartaprinciples.org/ [accessed 07.02.2012] 6 Douglas Sanders 'The role of the Yogyakarta Principles' , August 4 2008

5 case of transgender people these issues could be translated in difficulties in being legally recognized as or , unless the person in question underwent a sex-change operation; following such an operation, many were forced, under legislative reasons, to divorce of their spouse as same sex are, in most countries, illegal. The majority, if not all of transgender people, face discrimination at school, at work places, in hospitals or, even, in police departments. The most pressing problem emerges when States find the LGBTI people unnatural and abusive of that state's population religion or priorities. For example, the Russian Federation, , , are part of those countries that, while not rejecting the Principles altogether, do not agree with implementing them in national culture (be it through legal norms, media or made in schools). From the above mentioned, one can conclude that the Principles have been created with a precise role, that of ending discrimination against transgenders and all LGBTI people. The 'Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity' aim to enforce these international standards in a clear manner, so that all States understand the vulnerability of transgenders and individuals that suffer because of their sexual preferences. There is a need for a single, uniform legal instrument in order to fight discrimination based on gender identity as States will /implement the norms they feel are more suitable for their territory('peace-meal approach').

I 2. What is the legal status of the 'Yogyakarta Principles'?

Due to the fact that the 'Yogyakarta Principles' is a new document, and, as mentioned above, are not accepted unanimously by States, the question that arises is: what is the legal status of this document? Yogyakarta Principles can be considered soft-law, a quasi-legal instrument 7 and can be compared with that of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) which was adopted in 1979. The reason behind this was that, like CEDAW, that based its articles on international legal norms that were already included in international treaties (like the International Covenant on Civil and Political Rights), the Principles are, also, based on already

7 Christine Chinkin, 'A gendered perspective to the international use', Australian Year Book of , pag 279-293, 1989

6 existing norms of international law (“[t]he experts agree that the Yogyakarta Principles reflect the existing state of international human rights law in relation to issues of sexual orientation and gender identity” 8). Moreover, as stated in the document's introduction, the Principles aim to affirm already binding legal standards 9. But this 'repetition' of legal principles has proved to be effective in CEDAW's case, as it is now a binding legal convention that has shaped the international legal community. CEDAW has taken great steps in fulfilling its goal: to prevent, and eventually stop, discrimination against women. “The Yogyakarta Principles in and of themselves are not binding law, though they do represent an authoritative interpretation of international law, as distilled from the text and legal interpretation of a number of international human rights treaties, which are binding on signatory States” 10 . In order for them to become a strong and binding legal instrument, States must have a different attitude: they must understand their importance, accept them and use them thoroughly. Important steps are taken in this endeavor by the Office of the High Commissioner for Human Rights, the Committee on Economic, Social and Cultural Rights, the UN Human Rights Council, UNAIDS and the UN Office on Drugs and Crimes 11 . All these institutions use the Principles for exactly what they were created for: to enforce existing human rights and to ensure that these rights will not be violated when their beneficiary is a transgender male or . Nevertheless, several years after the Principles were launched (in 2007), and an important number of States still do not approve of this document claiming that, by accepting such a legal instrument, they would go against their cultural beliefs and traditions. Unfortunately, in order for the Yogyakarta Principles to be considered binding, a consensus amongst States must exist 12 , consensus being the first step in creating customary law. Concluding, the document is not binding, but “a number of member and observer States have already cited them in [Human Rights] Council proceedings” 13 . It has also been referenced by the Office

8 Ibid. 5 9 Yogyakarta Principles, Preamble 10 Paula L. Ettelbrick, Esq., Alia Trabucco Zerán 'The impact of the Yogyakarta Principles on the International Human Rights Law Development', 'A Study of November 2007 – June 2010', Final Report 11 Michael O'Flaherty, John Fisher, 'Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles' , Human Rights Law Review, Vol 8:2, pag 207-248, 2008, page 243 12 H. Hillgenberg, ‘A fresh look at soft law’ . European Journal of International Law , volume 10, number 3, 1999, p.499- 515 13 Michael O'Flaherty, John Fisher, 'Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles' , Human Rights Law Review, Vol 8:2, pag 207-248, 2008, page 238

7 of the High Commissioner of Human Rights and the Special Rapporteur 14 , in order to protect human rights and LGBTI people. Though not creating legal obligation, the Principles, through this use might, in the future, become a document that will have binding character.

I 3. What do the Principles contain?

The 'Yogyakarta Principles' do not aim to undermine any cultural beliefs. They set out to promote equality amongst all individuals and in all aspects of life, or as stated in Principle 3 of the 'Yogyakarta Principles', “[e]veryone has the right to recognition everywhere as a person before the law. Persons of diverse sexual orientations and gender identities shall enjoy legal capacity in all aspects of life. Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom”15 . The general principle of self-determination is well-known, being an important notion after the Second World War, primarily, for those groups of people that craved for their own country, or for as a . But Principle 3 talks about 'self-determination' of one individual, meaning the right of an individual to chose his own destiny, no matter if is motivated by external or internal reasons. Thus, it is safe to say that self-determination also stands for self-perception or self-identity. In the case 'Daniel M. Maffei v. Kolaeton Industries' decided in March 1995, the Court felt that relevant to the issue of transgender people 16 was the fact that gender or sex can be determined by “seven factors: chromosomes (XX female, XY male), gonads (ovaries or testes), hormonal secretions (androgen for men and for women), internal reproductive organs (uterus or prostate), external genitalia, secondary and self-identity”17 (how a person sees itself as a man or a woman). By protecting the right to self-determination, Principle 3 of the 'Yogyakarta Principles' protects the universal right of non-discrimination, as all humans can choose their own identity without facing any negative repercussions.

14 Ibid. 13, page 240 15 Idem 5, Principle 3 16 'Maffei v Kolaeton Industries' http://www.transgenderlaw.org/cases/maffei.htm [accessed 20.02.2012] 17 Ibid. 16

8 Principles 1 and 2 also talk about non-discrimination, but they address the right of universal enjoyment of human rights and the rights of recognition before the law (Principle 3 also includes them) 18 . Principles 4 to 11 are a reflection of the rights to human and personal security (Principle 5 states that “[e]veryone, regardless of sexual orientation or gender identity, has the right to security of the person and to protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual or group”19 ). Economic, social and cultural rights have been included in Principles 12 to 18: “[e]veryone has the right to the highest attainable standard of physical and mental health, without discrimination on the basis of sexual orientation or gender identity. Sexual and is a fundamental aspect of this right”20 . The rights to expression, opinion and association and the correlated obligation of States to not interfere in ones' right to express his identity or sexuality freely, can be noticed in Principles 19 to 21, while Principles 22 and 23 refer to the right of movement and asylum (“Everyone has the right to freedom of thought, conscience and religion, regardless of sexual orientation or gender identity. These rights may not be invoked by the State to justify laws, policies or practices which deny equal protection of the law, or discriminate, on the basis of sexual orientation or gender identity”21 ). Principles 24, 25 and 26 address the rights of every person to participate in cultural and family life, while Principle 27 enforces the rights of human rights defenders. The last two principle should apply when the rights of redress and accountability are violated 22 . Moreover, the Preamble of the Yogyakarta Principles' contains several definitions and clarifications that are used to clearly express which are the subjects of these rights, what types of discrimination they face and why there is need for a special protection. As shown above, in order to have a better understanding of the 'Yogyakarta Principles' and their essential connection with universal rights, each principle enters a different category, specific to certain rights: social rights, economic rights, security rights, and so on. But each Principle contains two paragraphs, or two parts: the first stating the right itself, and the second that talks about what 'States shall' 23 do in relation with each right.

18 See annex 1 19 Ibid. 5, Principle 5 20 Ibid. 5, Principle 17 21 Ibid. 5, Principle 22 22 http://www.yogyakartaprinciples.org/principles_en_overview.htm [accessed 07.02.2012] 23 Ibid. 5

9 For example, Principles 3 contains the following: “States shall: A. Ensure that all persons are accorded legal capacity in civil matters, without discrimination on the basis of sexual orientation or gender identity, and the opportunity to exercise that capacity, including equal rights to conclude contracts, and to administer, own, acquire (including through inheritance), manage, enjoy and dispose of property; B. Take all necessary legislative, administrative and measures to fully respect and legally recognise each person’s self-defined gender identity;.... 24 ” This is a valuable statement in the Principles' role: not only does a Principle protect a certain right in direct relation with sexual orientation and gender identity, but it also offers detailed recommendations to States, under the title 'States shall'. This leaves little room to interpretation, and it makes it very hard for States to create laws, based on the Yogyakarta Principles, that do not, thoroughly, include each right and obligation referred to. This paper does not try to divide the principles in 'more important' and 'not-as-important', as it should be implemented in national laws and, as they have their basis in important articles of international treaties or covenants (which will be thoroughly explained in chapter II). Since the document includes those important values found in already existing international norms, such a division would only go against what the document stands for: offering protection against all sorts of discrimination and/or discriminators. In its actual form, the document protects all the rights, thus, all the aspects that are needed for an individual to lead a normal, healthy, happy life. To divide these rights would be contradictory to their nature of universal, essential rights of all human beings. The right to life might be considered more important then the right to , but as seen in practice, any kind of discrimination can lead to the most negative outcome.

I 4. How were the Principles received by the international community?

As stated above, the Principles did not create new rights, but had the goal of better implementing those existing legal norms that were created in order to stop discrimination; with the mention that the Principles have as direct subjects the LGBTI community. The manner in which the document was written, the use of principles and not articles, the existence of a second paragraph in each principle that states the countries' obligations, and the definitions used in the Preamble, all had the

24 Ibid. 5, Principle 3

10 purpose to make the 'Yogyakarta Principles' easy to implement and to use. For example, the definitions for 'sexual orientation' and 'gender identity' “– devoid of the morally and medically stigmatizing connotations often found in the law 25 – have started already to build an important link among States and other authorities that have already adopted or referenced them in the context of legislative, judicial or executive level law making, reporting, or debate” 26 . Nevertheless, many did not approve of the Principles and believed the human rights experts stretched the content of most international legal norms, in order to impose the existence of rights that protect gender identity and sexual orientation. Thus, the Principles have received a wide pallet of reviews, ranging from enthusiastic acceptance (for example, the , Switzerland and the Nordic Countries , , Iceland, and ) to firm disapproval (for example, Malawi, the African States, the Arab States), the critics being grouped in two categories, each containing pro and against opinions about the validity of the principles: international institutions, States and non-governmental organizations or institutes. First of all, concerning the international institutions, the UN has found that the Principles are a valuable tool in fighting the abuses committed against transgenders and the other groups the Principles refer to, launching them in 2007, at the United Nations Headquarters in New York. The representatives of the UN who shared this opinion were , UN Special Rapporteur on extrajudicial, summary and arbitrary execution; Yakin Ertürk, UN Special Rapporteur on ; or Sanji Mmasenono Monageng (Botswana), Judge of the High Court (The Republic of the Gambia), Commissioner of the African Commission on Human and Peoples’ Rights, Chairperson of the Follow Up Committee on the implementation of the Robben Island Guidelines on prohibition and prevention of and other cruel, inhuman or degrading treatment 27 . The documented that resulted after the human rights experts' meeting in 2006, in Indonesia, was found to be an important instrument by the UN, because of its characteristics: first of all, the document provides a single, linear basis that expresses and clarifies the scope of human rights law (provided by international treaties and jurisprudence); second of all, the Principles act like a frame reference for Member States, in supporting and comprehending the rights of LGBTI people; third of all, “the specific

25 Michael O'Flaherty, John Fisher, 'Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles' , Human Rights Law Review, Vol 8:2, pag 207-248, 2008 26 Ibid. 10, page 11 27 Michael O'Flaherty, John Fisher, 'Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles' , Human Rights Law Review, Vol 8:2, pag 207-248, 2008, page 233

11 language and recommendations of the 29 Principles provide a concrete and authoritative measure for monitoring State compliance, or lack thereof, to specific issues” 28 ; fourth of all, they offer a concrete and correct definition for the terms 'gender identity' and 'sexual orientation' which have been used in some academic writings and other documents 29 ; fifth of all, they have proven to be a valuable element in advancing the notion that human rights apply to all individuals, regardless of their gender or sexual preferences 30 . This lead to new developments within the United Nations that manifested through the UN institutions. Therefore, the Office of the High Commissioner for Human Rights, which is responsible with aiding in human rights efforts, has the duty of promoting and integrating the Principles worldwide 31 , though concrete actions have yet to be taken. The Committee on Economic, Social and Cultural Rights (as the treaty body responsible with monitoring the States' compliance with the International Covenant, on Economic, Social and Cultural Rights) is also in charge of integrating the 'Yogyakarta Principles' 32 . Additionally, the UN High Commissioner for Refugees, together with UN Human Rights Council have decided to implement and use the Principles, in order to reach their purposes of better protecting individuals from any sort of upon their rights 33 . Second of all, reffering to States, many European countries have accepted the recommendation to use the Principles (e.g. Finland, , Czech Republic), the issue being that just a small number of other States followed their example. Canada, , , and have considered to use 'Yogyakarta Principles' to strengthen their policies on non-discrimination on the grounds of sexual orientation and gender identity, while San Marino, Ukraine, Qatar or Malta rejected the document 34 . The rejections were based on different motives: in San Marino's case, the officials stated the fact that their legislation already included protection against all grounds of discrimination,

28 Ibid. 10, page 13 29 For example: the 2007 statement of the UN High Commissioner for Human Rights, by Louise Arbour; the endorsement by the European Parliament Intergroup on Gay and Lesbian Rights; or the government statement in the German Parliament of February 2008 30 Paula L. Ettelbrick, Esq., Alia Trabucco Zerán 'The impact of the Yogyakarta Principles on the International Human Rights Law Development', 'A Study of November 2007 – June 2010', Final Report 31 The attributions of the OHCHR are found on the official website, http://www.ohchr.org/EN/Issues/HIV/Pages/RoleOHCHR.aspx (accessed 5.04.2012) 32 The attributions of the ICESCR are found on the official website, http://www.ohchr.org/EN/Issues/HIV/Pages/RoleOHCHR.aspx (accessed 5.04.2012) 33 Michael O'Flaherty, John Fisher, 'Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles' , Human Rights Law Review, Vol 8:2, pag 207-248, 2008, page 222 34 Paula L. Ettelbrick, Esq., Alia Trabucco Zerán 'The impact of the Yogyakarta Principles on the International Human Rights Law Development', 'A Study of November 2007 – June 2010', Final Report

12 while in Malta's it was the belief that the Principles are a product by the experts that adopted them, and that “they acted on their own behalf” 35 . Of course, plenty other States rejected the recommendation to adopt the Principles motivating that accepting such legal norms would mean to disrespect their traditional values(which surpass any law) – some have even cited verses of the Bible or the Koran to prove the immorality of this document . In the African States, the struggle has only begun. The reason is the hostile environment within these States which has created many barriers in accepting the Principles (especially since they are based on notions like 'sexual orientation' and 'gender identity'). Moreover, “[n]othing public has been located with regard to the use of the Yogyakarta Principles in the Middle East – a region that, with a few exceptions, remains overtly hostile to and, usually, to issues of gender identity” 36 . Another negative attitude was delivered by the , where no reference to the Yogyakarta document, be it judicial, executive or legislative, was found. Though the US Supreme Court has ruled “that criminalization of same-sex sexuality violates the Constitution” 37 and that legal norms of non- discrimination should apply to cases based on gender identity and sexual orientation, the cultural and legal struggles, that the US goes through, make it very difficult to forsee when the US will decide to use the Principles in its legal system and jurisprudence 38 . Third of all, regarding organizations, generally they were more interested in the 'Yogyakarta Principles' and tried to sustain their implementation. NGO's that support LBGTI people are, of course, involved, but NGO's focused on refugees, on women, on , or addressing HIV/AIDS support the document as well, finding it very useful in accomplishing their purposes. But there were dissensions amongst non-governmental institutions, too. The Catholic Family and Human Rights Institute, through a thesis entitled 'Six Problems with the Yogyakarta Principles' and published in April, 2007, expressed its disapproval with the document stating that its “problematic for the following reasons”39 :

35 Ibid. 10, page 22 36 Ibid. 10, page 60 37 Ibid. 10, page 39 38 Paula L. Ettelbrick, Esq., Alia Trabucco Zerán 'The impact of the Yogyakarta Principles on the International Human Rights Law Development', 'A Study of November 2007 – June 2010', Final Report 39 Piero A. Tozzi, J.D 'Six Problems with the Yogyakarta Principles' , International Organizations Research Group, Briefing paper, Number 1, April 2007, page 3

13 1) “The Principles undermine parental and familial authority” 40 - the Institute argued that the Principles include provisions which challenge the family bond, as it allows penal interference by the state, in case of violence against a family member (who is homosexual or transgender), the issue being that the notion of 'violence' is not defined by the Principles, thus, leaving room for interpretation. Moreover, if the Principles interfere in parental authority, they violate important provisions found in the Universal Declaration of Human Rights that protect all families against arbitrary interference; 2) “The Principles undermine freedom of speech” 41 - because they, by “[e]nsur[ing] that the exercise of freedom of opinion and expression does not violate the rights and freedoms of persons of diverse sexual orientations and gender identities” 42 , can also undermine the different opinions that exist on homosexuality or transgenderism. For example, in Sweden, a Pentecostal minister was prosecuted because he engaged in hate speech (against homosexuals) during a religious ceremony; 3) “The Principles undermine religious freedom” 43 - Principle 21 ensures right to freedom of religion, which suppresses the free exercise of religion, as many religious beliefs do not approve of transgenderism or homosexuality and consider it a sin. 4) “The Principles undermine national sovereignty/national democratic institutions” 44 - as they call upon States to amend their constitutions and to change their laws in order to favor the LGBTI community, or, to ensure the existence of a supra national authority that should investigate and prosecute in any cases of attacks (against LGBTI people), without having the legal power of a binding treaty (that, in order to create legal obligations, requires the state's signature); 5) “The Principles encourage (physically, psychologically and morally) unhealthy choices” 45 - the Institute argues that sex-change operation is, in fact, very harmful, even if it is the means through a transgender achieves his goal. Promoting such a behavior might encourage many individuals to undergo such surgeries and regret them afterward.

40 Ibid. 39 41 Ibid. 39, page 4 42 Ibid. 5, Principle 19 43 Ibid. 39, page 5 44 Ibid. 42 45 Ibid. 39, page 6

14 6) “The Principles fail to provide objective standards for evaluating conduct” 46 - affirming that Principle 19 “would proscribe 'notions of public order, public morality, pubic health and public security' from restricting the ability to exercise 'freedom of opinion and expression that affirms diverse sexual orientations or gender identities'” 47

Summing up the opinion for and against the Yogyakarta Principles it is clear that they were not received with open arms from the start. Though some States and institutions have agreed with the need for such a document, other States are still reluctant regarding its necessity. That is why the notions within the Principles must be explained and discussed, in order to demonstrate the fact that they protect all human beings, not having other purposes. Importantly, the UN has taken measures to help promoting the principles worldwide and to implement them where possible, for now.

Chapter II – Comparing the Principles with existing international legal norm

II 1. Are the 'Yogyakarta Principles' derived from existing international legal norms?

The 'Yogyakarta Principles' were not meant to form a document which laid out what the international law should aspire for. It is a document that aims to protect , , bisexuals, transgenders and inter-sexuals by acting like a common denominator for all the basic, existing principles of non-discrimination. “The basic premise is that lesbians, gay men, bisexuals, transgendered people and inter-sexuals are all human beings and are equally entitled to human rights” 48 . As presented in Chapter I, sub-chapter 3, the Principles can be divided depending on the universal rights they protect: some protect the universal right of non-discrimination, others the social, economical and cultural rights, and others the right to family and/or security. This division is possible, mainly because the 2007 document is a reiteration of universal principles that are envisaged in international treaties from the Universal Declaration of Human Rights (1948), the Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the International Covenant on Civil and Political Rights (1966) or the International Covenant on Economic, Social and Cultural Rights

46 Ibid. 45 47 Ibid. 45 48 Douglas Sanders 'The role of the Yogyakarta Principles' , August 4 2008, page 6

15 (1966), to the Charter of Fundamental Rights of the (2000), the American Convention on Human Rights (1969) or the Arab Charter on Human Rights (2004). These treaties represent the most important source of human rights, the reason being that they not only contain all rights that a human being, or an individual, has (due to the fact that they were born a human), but they also, indirectly, envisage the States' legal obligations. Moreover, some of the treaties are binding for all signatory States (e.g. the ICCPR, the ICESCR, the CPHRFF), others, even if not binding, have created legal standards which are applied by the international community (the UDHR) and others, like The Arab Charter or the American Charter, are in process of becoming binding. The significant difference between the general standards found in the treaties and the 'Yogyakarta Principles' is the fact that the latter has a specific recipient: the LBGTI community. This was not appealing at all to a number of States, as they claimed that the rights and correlating obligations, which can be deduced from the document, violate their cultural or religious beliefs upon sexuality, family or gender. The promoters of the 'Yogyakarta Principles' underlined that the document's standards are the same with the ones found in already existing international norms, and, most importantly, that transgenders and homosexuals are human beings first and foremost, their gender or sexual preferences not changing this fact in any way, and they must be treated equally as all other individuals. In order to validate that the Principles promote rights and legal standards that are already binding, their texts must be compared with the texts of the treaties mentioned above: the Universal Declaration of Human Rights (UNDHR), the Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Charter of Fundamental Rights of the European Union (ChFREU), the American Convention on Human Rights (ACHR) and the Arab Charter on Human Rights (AChHR). The Principles used to achieve this validation contain the most important rights which must be applied to any and all individuals. Thus, Principle 1 states: “All human beings are born free and equal in dignity and rights. Human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights” 49 .

49 Ibid. 5, Principle 1

16 With regard to the Universal Declaration of Human Rights, the first thesis of the first Principle is identical to the first thesis of article 1 of the Declaration that clearly states that all human beings are entitled to rights. This standard of universal equality is also found in the provisions of the ICCPR, in article 3: “[t]he States Parties tot he Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights[...]” and in article 3 of the ICESCR: “[t]he States Parties to the Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights[....]” 50 . As for the Convention for the Protection of Human Rights and Fundamental Freedoms, article 1 ensures that “ everyone ” will benefit from the rights and freedoms provided by this convention, while the Charter of Fundamental Rights of the European Union provides that “ everyone ” is equal before the law, ensuring, moreover, through article 23, equality amongst men and women in all other aspects of life (not just from the legal point of view). The American Charter of Human Rights provides equality to “ all persons ”, through the first article and it also defines the term 'person' as representing a human being. It further states, in article 3, that “[e]very person has the right to recognition as a person before the law”. The Arab Charter of Human Rights also provides equality to “all [human] persons” before the law, in article 11. As it can be observed, all the treaties mentioned ensure equality amongst human beings, persons, men and women, without ever specifying definitions or conditions in order to be a human being; a person is not defined by their sexual orientation or their choice of gender-specific preferences, ergo there should be no confinement of human beings that have different sexual or gender likes. Principle 2, of the Yogyakarta document, provides that “[e]veryone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity.[….] Discrimination based on sexual orientation or gender identity may be, and commonly is, compounded by discrimination on other grounds including gender, race, age, religion, , health and economic status” 51 . In order to underline the fact that the 'Yogyakarta Principles' are based on existing international legal norms, the existing provisions used as a baseline for Principle 2 shall be pointed out. Thus, in the UDHR, article 2 states that all humans should benefit from all human rights “without distinction of any

50 Universal Declaration of Human Rights , article 1, http://www.un.org/en/documents/udhr/ , [accessed 09.02.2012] 51 Ibid. 5, Principle 2

17 kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status[....” 52 . Articles 2 and 27 of the ICCPR consider the same general principle of non-discrimination, creating the obligation for states and individuals to refrain from any action or omission that would lead to a discriminating behavior. The same is found in article 2, paragraph 2 of the ICESCR. The Convention for the Protection of Human Rights and Fundamental Freedoms dedicates (and entitles) article 14 to the “prohibition of discrimination”; the Charter of Fundamental Rights of the European Union prohibits discrimination “based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation” in its article 21. As it can be noticed, this article protects people with a different sexual orientation - which was an important step to take, but, unfortunately, not sufficient as it does not cover the discrimination against transgenders or inter-sexuals. Concerning the American and Arab Charters, articles that protect individuals against discrimination do exist, and thus, should be enforced. Articles 1 and 24 of the American Charter have a clear and direct interpretation when providing protection against discrimination, but the Arab Charter, though states clearly in articles 3 and 11 that making distinctions amongst individuals with regards to sexual identity, religion or nationality is against the law, the Charter is “based on the faith of the Arab nation” 53 , which does leave room for different interpretations. This, unfortunately, translates in allowing discrimination based on sexual and gender preferences, as these preferences are prohibited by the “ laws” 54 . It is obvious that Principle 2 is based on the general standard of non-discrimination, the important difference being that it applies it directly to the LGBTI community, with respect to the scope of the document. Principle 3 protects the right to recognition before the law specifying that “[e]ach person’s self- defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom”.

52 Universal Declaration of Human Rights , article 2 http://www.un.org/en/documents/udhr/ [accessed 09.02.2012] 53 Arab Charter on Human Rights , Preamble 54 Arab Charter on Human Rights , Article 3, paragraph 3, http://www.acihl.org/res/Arab_Charter_on_Human_Rights_2004.pdf [accessed 04.03.2012]

18 The first chapter, sub-chapter 3, of this paper discuses how the right to self-determination is important in all cases concerning transgenders and/or homosexuals and/or lesbians. The right to recognition before the law and the right to self-determination are specified in different treaties, thus, the right to self-determination is protected by the ICCPR in article 1, as by the ICESCR (“all peoples have the right to self-determination” 55 ) and by article 2 of the Arab Charter of Human Rights (“All peoples have the right of self-determination and to control over their natural wealth and resources,[…...” 56 ), while the right to recognition before the law is found in article 6 of the UDHR: “[e]veryone has the right to recognition everywhere as a person before the law” 57 . Further, the right to life, established by article 3 of the UDHR, is the basis for the fourth Principle. This Principle states that no person should be deprived of his or her right for the reason of being homosexual or transgender (as for any other reason). “Everyone has the right to life, liberty and the security of person” 58 and “every human being has the inherent right to life.[...] No one shall be arbitrarily deprived of his life” 59 are binding provisions found in the UDHR, the ICCPR, or the Convention for the Protection of Human Rights and Fundamental Freedoms, but also in articles of not-yet binding treaties as the ACHR (in article 4) or the Arab Charter, in article 5. The right to security of the person and the right to freedom from arbitrary deprivation of liberty are established in two different principles: Principle 5 and Principle 7. In the UDHR these rights are found under one article, article 3. The need to dedicate three different Principles (the right to life, the right to security and the right to liberty) for provisions that were initially expressed under one article , was given by the goal of the Yogyakarta Principles: a better implementation of existing legal norms 60 . Principles 5 and 7 have their basis in article 9 of the ICCPR, as well: “[e]veryone has the right to liberty and security of the person. No one shall be subjected to arbitrary arrest or . No one

55 International Covenant on Civil and Political Rights, Article 1 http://www2.ohchr.org/english/law/ccpr.htm [accessed 07.03.2012[ 56 Arab Charter on Human Rights , Article 2, paragraph 1 http://www.acihl.org/res/Arab_Charter_on_Human_Rights_2004.pdf [accessed 04.03.2012] 57 Universal Declaration of Human Rights , Article 6 58 Ibid. 57, Article 3 59 International Covenant on Civil and Political Rights, Article 6 http://www2.ohchr.org/english/law/ccpr.htm [accessed 07.03.2012[ 60 Principle 6, the right to privacy, is protected by article 17 of the ICCPR: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family [.....”, and article 12 of the UDHR : “No one shall be subjected to arbitrary interference with his privacy [….”

19 shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law” 61 . The right to liberty and the right to security are also discussed in article 5 of the CPHRFF, article 6 of the Charter of Fundamental Rights of the European Union, article 7 of the ACHR and article 16 of the AChHR. Another relevant Principle in demonstrating that the Yogyakarta document was based only on international norms that already existed, is Principle 8, that protects the right to a fair trial. In the Universal Declaration of Human Rights this legal standard is stated more elaborately under article 10: “[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him” 62 . The CPHRFF also includes the right to fair trial in its context under article 6, but, as opposed to article 10 of the UDHR, it also includes “the determination of [ones] civil rights”, not only of criminal charge. The ICCPR also refers to this provision in article 14, as does the Charter of Fundamental Rights of the European Union in article 47. Additionally, both the American Convention and the Arab Charter on Human Rights recognize the right to a fair trial: article 8 of the ACHR stated that “[e]very person has the right to a hearing, with due guarantees and within reasonable time, by a competent, independent and impartial tribunal […], in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature 63 ”, while article 13 of the Arab Charter stating clearly that “[e]veryone has the right to a fair trial[....” 64 . Principle 12 of the 'Yogyakarta Principles' protects the (“Everyone has the right to decent and productive work, to just and favourable conditions of work and to protection against unemployment, without discrimination on the basis of sexual orientation or gender identity” 65 ), as does article 23 of the UDHR. 66

61 International Covenant on Civil and Political Rights, Article 9 http://www2.ohchr.org/english/law/ccpr.htm [accessed 07.03.2012[ 62 Idem 57, Article 10 63 American Convention on Human Rights , Article 8 http://www.hrcr.org/docs/American_Convention/oashr.html [accessed 12.03.2012] 64 Arab Charter on Human Rights , Article 13 http://www.acihl.org/res/Arab_Charter_on_Human_Rights_2004.pdf [accessed 04.03.2012] 65 Yogyakarta Principles, Principle 12 66 Principles 9 and 10 of the Yogyakarta Principles, the right to treatment with humanity while in detention and the right to freedom from torture and cruel, inhuman or degrading treatment or punishment, find their basis in the Convention

20 The ICESCR enforces the universal right to work trough two articles, 6 and 7: States must“...] recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts and will take appropriate steps to safeguard this right” 67 ;and “...] recognize the right of everyone to the enjoyment of just and favourable conditions of work” 68 . Article 15 of the Charter of Fundamental Rights of the European Union recognizes the right of every person to choose an occupation and engage in work, while the Arab Charter states that “the right to work is a natural right of every citizen” 69 . “Everyone has the right to the highest attainable standard of physical and mental health, without discrimination on the basis of sexual orientation or gender identity. Sexual and reproductive health is a fundamental aspect of this right”. This is the text of the seventeenth Principle, text that respects the provisions of article 25 of the UDHR (“[e]veryone has the right to a standard of living adequate for the health[...]of himself and of his family, including[...]medical care” 70 ) and those of article 12 of the ICESCR. The obligations that States Parties to the ICESCR must respect in order to protect the right to the enjoyment of the highest standard of physical and mental health, expressed in article 12, have set the necessary elements for an efficient healthcare system worldwide, thus an efficient implementation of the . These elements are: availability (states have the obligations to ensure that healthcare facilities are available in enough quantity), accessibility (all health facilities must be accessible to everyone, without gender, religious, cultural or other distinctions), acceptability (health services and facilities must respect and patient values/beliefs) and quality (all health services, goods or facilities must be of good quality and scientifically and medically appropriate) 71 .

against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Principle 11, the right to right to protection from all forms of exploitation, sale and trafficking of human beings have their in the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others; Principle 13, the right to social security and to other social protection measures is also protected by article 22 of the UDHR; The provisions found in Principles 14 and 15 are also protected by article 25 of the UDHR: “[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lac of livelihood in circumstances beyond his control”; Principle 16, the right to education is protected, as well, by article 26 of the UDHR 67 International Covenant on Economic, Social and Cultural Rights , Article 6 http://www2.ohchr.org/english/law/cescr.htm [accessed 12.03.2012] 68 Ibid. 67, Article 7 69 Arab Charter on Human Rights , Article 34 http://www.acihl.org/res/Arab_Charter_on_Human_Rights_2004.pdf [accessed 04.03.2012] 70 Ibid. 57, Article 25 71 Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran, David Harris 'International Human Rights Law' , Oxford

21 The legal standards of Principle 17 are also found within article 35 of the Charter of Fundamental Rights of the European Union, that ensures “[a] high level of human health protection[...]in the definition and implementation of all Union policies and activities” 72 . As for the American Convention and the Arab Charter, the former expresses, in a general tone, in its article 5 that all persons have the right to “physical, mental, and moral integrity” 73 , while the latter followed the texts of the ICESCR, expressing that “every member of society [has the right] to the enjoyment of the highest attainable standard of physical and mental health and the right,[...] to free basic health-care services[...]without discrimination of any kind” 74 . Principle 19 is another valid example in demonstrating the direct influence of already existing legal standards in the Yogyakarta document. It is entitled 'the right to freedom of opinion and expression', and it took the provisions of the 19 th article of the UDHR (“...]; this right includes freedom to hold opinion without interference and to seek, receive and impart information and ideas trough any media[...”) and applied them, directly, to all people part of the LGBTI community. In the Convention for the Protection of Human Rights and Fundamental Freedoms both articles 8 and 9 refer to the universal freedom of thought and expression, as do article 13 of the ACHR and article 30 of the AChHR (it must be noted, though, that this article also includes an exception to this right, stating that restrictions can be imposed when provided by law). Further, Principle 22 protects the right to freedom of movement, also adding that “[s]exual orientation and gender identity may never be invoked to limit or impede a person’s entry, egress or return to or from any State, including that person’s own State”75 . The provision of this article is expressed as well in: article 13 of the Universal Declaration of Human Rights: “[e]veryone has the right to freedom of movement and residence within the borders of each State” signatory of the Declaration; article 12 of the ICCPR; article 45 of the ChFREU (“[e]very citizen of the Union has the right to move and reside freely within the territory of the Memebr States” 76 ); and article 22 of the American Convention.

University Press, 2010, page 244 72 Charter of Fundamental Rights of the European Union , Article 35, http://www.europarl.europa.eu/charter/pdf/text_en.pdf [accessed 03.03.2012] 73 American Convention on Human Rights , Article 5 74 Arab Charter on Human Rights , Article 39 75 Yogyakrta Principles , Principle 23 76 Charter of Fundamental Rights of the European Union , Article 45

22 Moreover, Principle 23 protects the right to asylum, as do article 14 of the UDHR: “everyone has the right to seek and to enjoy in other countries asylum from persecution” 77 and article 28 of the Arab Charter. Lastly, Principles 28 and 29 are relevant for the analysis of chapter II, sub-chapter 1 because they refer to the right of effective remedies and redress, and to the accountability of all those who infringe on the universal standards of human rights of all transgenders, homosexuals, lesbians and inter-sexuals. Such provisions weigh heavily in the process of fighting discrimination and other forms of violations of human rights because they ensure and enforce compensations for those whose rights were abused, and, most importantly, they ensure the legal basis needed to hold abusers of human rights accountable. In order to have a healthy legal apparatus, it is not enough to protect the basic rights of any individual, but it is necessary to hold responsible those who violate these rights. Many treaties have addressed the right to and effective remedy, enforcing its implementation, but the articles of these treaties - as any legal norm - are liable to interpretations, ergo, since a person, institution or state has the obligations to ensure remedy in case of legal violations, it means it is held accountable for those violations (as only the guilty are responsible with repairing the damages caused, be they through actions or omissions). With this in mind, there will be a comparison between Principle 28 and articles of the already mentioned treaties. Thus, in the UDHR article 8 states that “[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution” 78 , Principle 28 assuring “effective, adequate and appropriate remedies” 79 . Article 13 of the CPHRFF adds a new paper in ensuring this right, stating that it shall apply even in the situation “the violation has been committed be persons acting in an official capacity” 80 . The Arab Charter followed this interpretation in its article 23. The Charter of Fundamental Rights of the European Union includes in article 47 both the right to an effective remedy and the right to a fair trial, while the ACHR ensures the right to judicial protection (“[e]veryone has the right to simple and prompt recourse[...” 81 ) in article 25.

77 Universal Declaration of Human Rights , Article 14 78 Ibid. 77, Article 8 79 Yogyakarta Principles , Principle 28 80 Convention for the Protection of Human Rights and Fundamental Freedoms , Article 13 http://conventions.coe.int/treaty/en/treaties/html/005.htm [accessed 22.03.2012] 81 American Convention on Human Rights , Article 25

23 In conclusion, comparing the provisions envisaged in the 'Yogyakarta Principles' with those found in international treaties and binding international norms was able to demonstrate that the Principles were, in fact, based on existing legal norms. Human rights experts, judges, academics and the representatives of NGO's met in order to discuss and resolve the problems that exist in current legal jurisprudence, theory or practice (through implementation and enforcement). “They are not in competition with the UN system. They are complementary. They are supportive. Their conclusions may be relied on. Only time will tell if their conclusions will be influential” 82 . The document, which was written as a result of this meeting, protects one group of people in particular (the LGBTI community) by the same means as all other individuals are protected, and by the same legal provisions which have applied for many States and for an extended period of time.

II 2. Why were the Yogyakarta Principles necessary in current international human rights law?

Demonstrating that the 'Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity' is a document that was inspired by existing legal norms, unfortunately, raises a new issue, ergo, a new question: why was this document needed? If the provisions that it is based on, are already found in several treaties which are binding (thus creating legal obligations), why the need for a new legal instrument that reiterates principles which already apply? First of all, one reason for the necessity of the implementation of the 'Yogyakarta Principles' coincides with its role: to protect the LBGTI civil society – by being implemented in both international and national legislation. The fact that binding treaties already promote non-discrimination and equality amongst all persons, or all human beings, is accurate 83 , but what is also accurate is the multitude of cases of discriminating against transgenders, homosexuals and inter-sexuals, or transsexuals. “ Hate crimes and hate-motivated incidents against LG BT persons frequently happen all over the world. Examples reported over the past [...] years include: two South African lesbian activists were murdered in ‘mafia-

82 Douglas Sanders 'The role of the Yogyakarta Principles' , August 4 2008 , page 5 83 Stephanie Farrior 'Human Rights Advocacy on Gender Issues: Challenges and Opportunities' , Journal of Human Rights Practice Vol 1, Number 1, pp. 83–100, March 2009

24 style’;[...] a transgender woman was murdered in ; a group of sex rights activists was arrested and ill-treated in Bangalore (India); transgender human rights activists were murdered in Honduras and Turkey”. 84 To better answer the central research question of this paper, the statistics for transgender discrimination will be exemplified, thus: acts of violence „lead to the death of one transgender person every month in the U.S.A., according to the „Transgender Day of Remembrance Organization” 85 . Still, when their life is not in danger, their well-being is. In some countries, the change of ones' sex leads to forced divorce ( between persons of the same sex is only allowed in a small number of countries), medical issues (most cannot undergo the operation because either their policy does not cover it, or doctors do not approve of the operation: „[e]ngendered Penalties Study which found that 29% of respondents felt that being transgender adversely affected the way they were treated by healthcare professionals” 86 ), forcing them to travel to another country for this type of surgery, and to inequality in the work place. As written in 2009 in the Issue Paper by Thomas Hammarberg, Commissioner for Human Rights: „unemployment is a major concern for transgender persons. The Engendered Penalties study shows that only 31% of respondents are in full-time employment. The exact figure for transgender women is 40% and for transgender men 36%, while among the non-transgender population these figures are 57% for women and 72% for men 87 . Another problem that transgenders face, especially when trying to find a suitable workplace, is found in their medical records: most are diagnosed with '', or 'sexual identity disorder', “hence falling within the rubric of mental and behavioral disorders” 88 . For example, in Iran, transgenders can receive an exemption from the Military Service Organization due to the classification of 'mental disorder'. But, this leads to a negative reaction from part of the employers, as they are unwilling to hire people with any kind of disorders and unwilling to understand what the 'sexual identity disorder' entails 89 .

84 Joke Swieberl and Dennis van der Veur, 'Hate Against Crimes Against Lesbian, Gay, Bisexual and Transgender Persons and the Policy Response of International Governmental Organisations' , Netherlands Quarterly of Human Rights, Vol 27/4, 485-524, 2009 85 www.masstpc.org [accessed 22.03.2012] 86 Ibidem 85 87 https://wcd.coe.int/wcd/ViewDoc.jsp?id=1476365#P136_31310 [accessed 24.03.2012] 88 Maya Sabatello, “Advancing Transgender Family Rights through Science: A Proposal for an Alternative Framework” , Human Rights Quarterly, volume 33, 2011, page 46 89 Afsaneh Najmabadi 'Verdicts of Science, Ruling of Faith: Transgender/Sexuality in Contemporary Iran' , Social Research, Vol 78, No 2, pag. 533-556, 2011

25 It is obvious that the problems that transgenders face are of a special nature and present the need to be addressed in a particular manner. In order for their rights to be properly respected, their needs as a social group, and as individuals must be analyzed and dealt with. The 'Yogyakarta Priniples' is a document that, because it focuses its provisions on the rights of the LBGTI community as its principal recipient, can have the power to enforce those legal obligations that will ensure equality and non- discrimination for transgenders and homosexuals. Second of all, the ''Yogyakarta Principles' are a valuable instrument in dealing with the realities of the present: homosexuality and transgenderism are not as uncommon as in the past, having become a far more discussed topic in everyday society. If it were to compare the faith of the LGBTI community with that of women and other minority groups, like indigenous peoples, one might see why there are benefits from directly addressing, from a legal point of view, a particular social group. The Convention on the Elimination of All Forms of Discrimination Against Women and the United Nations Declaration on the Rights of Indigenous Peoples are two treaties that, after years of struggling with being implemented, are now creating legal obligations. With the purpose of successfully implementing the provisions claiming equality (in all aspects of life, for example from education to medical care) these provisions must not only be valid and legally accurate, but they must appeal to States, as by signing the document which contains these provisions, the States can ensure the treaty's binding character 90 . Unfortunately, as related in chapter 1, a large number of States find the matter of transgenderism and homosexuality as very controversial and are not keen on signing documents like the 'Yogyakarta Principles'. The Holy See's 91 position, for example, is against provisions that expressly protect the LGBTI civil society, considering homosexuality a crime 92 . Some States 93 still carry the death penalty for same-sex conduct, and most States do not want to promote provisions of this caliber, motivating it would be against their beliefs, holy laws and the integrity of family. Nevertheless, the of the decades have produces many changes in the human culture, reaching to a point when, nowadays, many influential people have openly expressed their sexual

90 Joke Swieberl and Dennis van der Veur, 'Hate Against Crimes Against Lesbian, Gay, Bisexual and Transgender Persons and the Policy Response of International Governmental Organisations' , Netherlands Quarterly of Human Rights, Vol 27/4, 485-524, 2009, page 490 91 The episcopal jurisdiction of the Catholic Church in Rome 92 Ibid. 90, page 89 93 Iran, Mauritania, Nigeria, Saudi Arabia, Sudan, United Arab Emirates, and Yemen.

26 orientation or gender identity 94 . As a result, the matter of transgenderism or homosexuality has started to gain ground from a social point of view, and, as a consequence, from a legal one as well: the international community has started to give more and more attention to the cases of discrimination, and hate speech against the LGBTI civil society and to actually comprehend its vulnerability. Ergo, is it clear that, as culture progresses, so does international law: in the cases of women, indigenous people, and many ethnic groups and, now, slowly but surely, in the cases of LGBTI society. The human rights paradigm has always shifted so as to serve the rights of all individuals, especially those whose problems were prevalent at the time. But this shift was not just theoretic because the treaties, that have been elaborated to support the rights of human beings, have gained the acceptance and signature of the States, giving them a binding character. The 'Yogyakarta Principles' are that document, that set of principles that contain those rights that transgenders, lesbians, homosexuals have the need for (in all the aspects of any individual’s life from the right to life and the right of adequate housing, to the right to peaceful assembly and the right to movement) and, as well, the correlated obligations that are imposed on States, governmental and non-governmental institutions. Thus, they represent progress in international human rights law, time being the decisive factor in whether the Principles will become binding. Third of all, the 'Yogyakarta Principles' are properly structured in order to tackle the problems of hate crime 95 , hate-motivated incidents 96 and hate speech 97 , by containing social, economic, cultural and all the other categories of human rights. The majority of LGBTI people are the victims of discrimination that endangers their lives, their health and/or their freedom. The hate crimes and hate speech that lead to this massive discrimination are a consequence of and , the irrational fears of homosexuals and transgenders 98 . Due to their strong negative nature, hate crimes can lead to violations of the right to life, which is a crime against any individual and is punishable by law in all States. Unfortunately, hate-motivated incidents are usually qualified as acts of hooliganism and are not treated with the importance they should be: as discriminatory acts against a specific social

94 Ellen DeGeners, Ben Barres, , Dan Choi, Anderson Cooper 95 “any criminal offence, including offences against persons or property, where the victim, premises, or target of the offence are selected because of their real or perceived connection, attachment, affiliation, support, or membership with a group such as (…) real or perceived race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or other similar factor”, OSCE, Annual Report 2006, note 5, page 9 96 “The term is broad enough to cover a range of manifestations of intolerance from low-level incidents motivated by bias to criminal acts”, OSCE, Annual Report 2006, note 5, page 9 97 As public expressions that incite to discrimination towards minorities 98 European Parliament, 'Resolution on homophobia in ' , January 2006

27 group. Moreover, hate speech is difficult to combat, as every individual or groups of people have the right to freedom of expression, even if their opinions differ from those of the UN or NGO's. But hate speech is not always the expression of a contrary opinion, sometimes being an actual incitement to discrimination and/or violence towards people of different sexual orientation or gender identity (many transgenders having to leave their workplaces or homes because they were 'cast out' by the other members of the community). 99 Many national statuary laws do not include the proper provisions to protect the LGBTI community, mainly because in many States such conduct is socially shunned and there is a constant belief that, expressly protecting this social group, might cause a social normalization, and legitimization of conducts such as pedophilia 100 . These acts and public expressions are a clear signal towards the vulnerability of the LGBTI community and the need for a well-structured legal document that can act as a common denominator by including all the universal rights that should apply to all individuals, as well as the States' obligations that derive from each right. The conclusions of sub-chapter 1 of chapter II of this paper were that the 'Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity' represent, indeed, such a document. The struggle against hate crime and hate speech is on-going, but it must be understood that these are acts of discrimination against transgenders, homosexuals, lesbians and inter-sexuals, regardless of those traditional beliefs or holy laws - which are against this group of individuals. The need for a document which can protect the LBGTI community against physical, verbal or emotional abuse and which can ensure the States' involvement in protecting the community from legal or administrative abuse, as well, is a fact and the 'Yogyakarta Principles' have the necessary juridical qualities to promote the implementation of such rights and obligations. To conclude, the importance of the Yogyakarta Principles should not be diminished by their reliance on theoretical bases from already existing legal norms. Considering its role and its recipient, the fact that the document would confront difficulties in implementation was on the table from the beginning, one of the obstacles being the still reluctant approach towards the LGBTI community. To use the same legal provisions to protect transgenders, homosexuals or inter-sexuals, as those used for

99 Joke Swieberl and Dennis van der Veur, 'Hate Against Crimes Against Lesbian, Gay, Bisexual and Transgender Persons and the Policy Response of International Governmental Organisations' , Netherlands Quarterly of Human Rights, Vol 27/4, 485-524, 2009, page 496 100 Stephanie Farrior 'Human Rights Advocacy on Gender Issues: Challenges and Opportunities' , Journal of Human Rights Practice Vol 1, Number 1, pp. 83–100, March 2009, page 89

28 the legal protection of all others individuals, is a safe method of dealing with the uncontroversial aspect of accepting and applying rights for this category of individuals. On the contrary, applying universal rights to a particular social group has proven to be effective, throughout the years, in the cases on women' rights, minorities' rights, and a large variety of ethnic rights (black people that fought for civil recognition amongst the USA; Jewish people that had to face ; Muslims that were subjected to acts of violence and discrimination, especially after the attacks on the World Center of 11.09.2001). All in all, the 'Yogyakarta Principles' are an important tool in fighting against the injustices transgenders face: in the “ almost 1 in 4 trans people are made to use an inappropriate toilet in the workplace, or none at all, in the early stages of transition. At work over 10% of trans people experienced being verbally abused and 6% were physically assaulted. As a consequence of harassment and a quarter of trans people will feel obliged to change their jobs” 101 , while all through the European Union, the Engendered Penalties Study “ found that 72% of respondents experienced some form of harassment in public. Forty-six percent stated that they had experienced harassment in their neighborhoods and 21% stated that they avoid going out. The EuroStudy found that 79% of respondents had experienced verbal abuse, threatening behaviour, physical or sexual abuse while out in public” 102 . Thus, by including those rights that assure a healthy and safe life for transgenders, and protecting them from a variety of forms discrimination, the 'Yogyakarta Principles' prove their legal value and their necessity in being implemented in national and international legislation.

Chapter III – Practical issues in light of 'Yogyakarta Principles'

III 1. Examples from the international jurisprudence and how were the matters resolved?

101 , Lewis Turner, Maryam Al-Alami 'Engendered Penalties: Transgender and People's Experiences of Inequality and Discrimination' , 2007 102 https://wcd.coe.int/ViewDoc.jsp?id=1476365#P136_31310 [accessed 02.04.2012]

29 In order to have a better perspective on the vulnerability of transgenders and the obstacles they must face so that they can lead a normal life, one must observe how they were approached legally, both by national tribunals and by international courts. The following cases have been chosen due to their relevance to the transgender community, and, by consequence, the relevance to all LGBTI people. The test cases will be presented in chronological order, as to better portray the changes which occurred in the LGBTI jurisprudence, thus the changes in the decision-making process of each trial that considers a transgender person. One of the first cases to involve transgenders was the New York case of Re Anonymous from 1968, which involved a male-to-female's application for a new birth-certificate that would reveal her current gender – as she underwent a sex-change operation prior to the application. “The Bureau [of Records and Statistics of the Department of Health of the City of New York], recognizing the possible consequences of any decision, called upon the New York Academy of Medicine (Academy) to study the problem and to submit its recommendations to the Board of Health 103 . It denied the applicant the request for a new birth-certificate declaring that “the public interest in protection against fraud outweigh[s] a transsexual’s right to privacy” 104 . The Supreme Court, further, decided in favor of the applicant, granting her a new birth- certificate to attest the fact that the applicant was in fact a woman, “because her anatomy had been brought into conformity with her psychological sex”105 . The reason for this ruling was that, after hormonal treatment and a sex-change operation, a psychological and anatomical harmony was achieved. But, due to this decision, a clear distinction between “pre or non-surgical transgender bodies” 106 and the post-operative body – a surgical intervention which assures the “authenticity” of a persons transgenderism 107 - was made. There was positive outcome for transgenders which resulted from New York Court's decision involving the possibility of ones' gender identity to be legally recognized, thus to be able to lead a normal life as man or woman, depending on the case, from a social and legal point of view. But opinions on the matter of transgenderism differed, and, as such, so did the judges' rulings. In 1970 the case of resulted in a decision which was in opposition of that of Re

103 Katie D. Fletcher 'A Case for Transsexual Marriage Recognition' , Loyola University Chicago Law Journal, Vol 37, 2006, pag. 533-570, page 546 104 Ibid. 103, page 547 105 Andrew N. Sharpe 'From Functionality to Aesthetics: the Architecture of Transgender Jurisprudence' , Murdock University Law, E Law, Vol 8, No 1, March 2001 106 Ibid. 103 107 Ibid. 103

30 Anonymous , nullifying that marriage of Arthur Cameron Corbett (the petitioner) and (the respondent) on the basis that Miss Ashley “was a person of the male sex” 108 , even if she underwent a sex-change operation. The proven facts in the case were that the respondent was born a man and was named Jamieson. In 1960 “he was introduced to a certain Dr Burou who practised at Casablanca, and, on 11th May 1960, he underwent, at Dr Burou's hand” 109 , a sex-change operation. Afterward, he lead his life as a woman, under the name April Ashley and married the petitioner in 1963. Fourteen days after the marriage ceremony, Mister Corbett filed for a decree in nullity of his marriage, declaring that the respondent was of male sex at the time of the marriage. He also stated that the marriage was never consummated and that he did not know that April Ashley was born a man. Opposite to Corbett testimony was that of Miss Ashley that declared they had consummated the relationship and that “the petitioner was aware of all the material facts before the ceremony took place” 110 . As these testimonies were not conclusive, the Court decided to obtain expert opinions on transgenderism from medical professors and practitioners. The judge concluded that it “is common ground between all the medical witnesses that the biological sexual constitution of an individual is fixed at birth (at the latest), and cannot be changed, either by the natural development of organs of the opposite sex, or by medical or surgical means. The respondent's operation, therefore, cannot affect her true sex” 111 . It is important to emphasize that the decision made the distinction between the gender of a person, ones physical sex reflected in our mentality 112 , which can be legally 'assigned' as a result of a sex-change operation, and the sex of a person, which is determined by chromosomes, gonads and genitalia, at birth. The consequence of this difference between gender and sex was that, while the possibility of being legally accepted as the desired gender existed, it posed a problem in the institution of marriage. The justification for this point of view is based on the fact that marriage is the precursor of family, of a woman and a man that will reproduce and raise a family. Since the sex of a person is determined at birth, by genitalia and gonads, there proper reproductive system, in order to procreate, is

108 http://www.vanuatu.usp.ac.fj/courses/LA306_Family_Law/Cases/Corbett_v_Corbett.html [accessed 04.04.2012] 109 Ibid. 108 110 Ibid. 108 111 Ibid. 108 112 Katie D. Fletcher, 'A Case for Transsexual Marriage Recognition' , Loyola University Chicago Law Journal, Vol 37, 2006, pag. 533-570, page 535

31 not found in a transgender body. This translates in the impossibility of having children, thus of not fulfilling the role of a family. 113 Ergo, the Court decided in favor of the petitioner, granting the annulment of the marriage of the basis that the respondent was of male sex at the time of the marriage, and even if she underwent a sex- change operation, she does not present the anatomical structure in order to achieve conception or birth. The Corbett v Corbett case's decision was thoroughly followed, later, in common law jurisprudence, managing to shift the perception on transgenderism, from a psychological issue of an individual, issue which had to be addressed with all seriousness and accuracy, from a barrier in the marriage institution, and the integrity of family. As shown in chapter I, sub-chapter 4, many still share this perspective. The third case that was relevant for this paper was that of M.T. v J.T. from 1976, New Jersey, United States of America. The plaintiff, M.T., and the defendant, J.T., have been married since 1972, but knew each other since 1970. The defendant was aware that M.T. was born a man, not a woman, as the plaintiff underwent the sex-change operation in 1971 and managed to obtain a birth-certificate to attest her gender. The problem arose when, two years after the marriage ceremony, the defendant left home and ceased to financially support his wife. This was the reason for which the plaintiff filed a complaint for support and maintenance from J.T. In his defense, the husband declared that M.T. was in fact a man and, thus, the marriage was void. One of the witnesses in this case was Dr. Ihlenfeld, the doctor which treated M.T. and diagnosed her as a transsexual. He prescribed hormonal treatment, in order to fulfill the plaintiff’s desire to become a woman, and later performed the sex-change operation. He also stated that “he no longer considered plaintiff to be a male since she could not function as a male sexually either for purposes of 'recreation or procreation'". 114 Another witness was Charles Annicello, a psychologist specialized in transsexualism. He “expressed the opinion that if a person had a female psychic gender and underwent a sex reassignment operation, that person would be considered female” 115 . The New York Court felt, on an opposite note than the decision of Corbett v Corbett, “that the English court believed, we feel incorrectly, that an anatomical change of genitalia in the case of a

113 Ibid. 108 114 http://www.leagle.com/xmlResult.aspx?page=2&xmldoc=1976217140NJSuper77_1209.xml&docbase=CSLWAR1 -1950-1985&SizeDisp=7 , page 2 [accessed 04.04.2012] 115 Ibid. 114

32 transsexual cannot 'affect her true sex'. Its conclusion was rooted in the premise that 'true sex' was required to be ascertained even for marital purposes by biological criteria” 116 . The Court concluded that achieving psychological and physical unity as regards to ones gender is an important step in a transsexual's life as it creates harmony between both mental and physical states, thus furthering the right to the pursuit of happiness, which is a fundamental right in the United States of America. Moreover, as long as normal intercourse was achieved, implicitly a normal sexual relationship existed between the defendant and the plaintiff, it meant that M.T. had “the full capacity to function sexually as a[...]female” 117 . “Consequently, plaintiff should be considered a member of the female sex for marital purposes” 118 . With this reasoning, the Court decided in favor of the plaintiff stating that at the time of the marriage M.T. was a female and, since J.T. was a man, the marriage was lawful and thus, the defendant must support his former wife. The fourth case, though it does not involve the legal struggles of a transgender individual, rather being a case about tackling discrimination – under the forms of hate speech and hate-related incidents – is a valuable example for this paper. It emphasizes the conclusions of chapter II, that the Yogyakarta Principles can help resolve problems of discrimination amongst people of all sexual orientations and gender identities, more efficiently (especially, if they are implemented in national legislation). . Toonen v Australia was a case that involved a citizen of Tasmania, Australia, who filed a complaint with the Human Rights Committee claiming that the legal norms in Tasmania criminalizing acts of consensual sex between adult males, were in violation of article 17 of the International Covenant on Civil and Political Rights, which mandates the right to privacy. “The author further observe[d] that effective administrative remedies are not available, as they would depend on the support of a majority of members of both Houses of Parliament, support which is lacking. Finally, the author contend[ed] that no judicial remedies for a violation of the Covenant are available, as the Covenant has not been incorporated into Australian law, and Australian courts have been unwilling to apply treaties not incorporated into domestic law” 119 . In its defense, the State argued – in Tasmania's name – that the laws criminalizing homosexual conduct in private did exist, but that no prosecutions were made under those laws for an extended period of time, and that these laws, actually, were meant to hinder the spread of HIV/AIDS amongst the population of Australia.

116 Ibid. 114, page 4 117 Ibid. 114, page 5 118 Ibid. 117 119 http://www1.umn.edu/humanrts/undocs/html/vws488.htm [accessed 05.04.2012]

33 “The Committee [was] called upon to determine whether Mr. Toonen ha[d] been the victim of an unlawful or arbitrary interference with his privacy . Inasmuch as article 17 [of the ICCPR] is concerned, it is undisputed that adult consensual sexual activity in private is covered by the concept of 'privacy', and that Mr. Toonen is actually and currently affected by the continued existence of the Tasmanian laws” 120 . Regarding the health argument, the Committee noted that there was never any proof that criminalizing homosexuality would improve the situation concerning the spread of HIV/AIDS. The Australian Government agreed with the Committee by stating that criminalizing this conduct would eventually lead to driving people with the risk of infection out of the public attention and in the underground. The Committee concluded that keeping homosexuality under the umbrella of laws that prohibit it, would non only be insufficient in tackling the issues with HIV/AIDS infections, but it would actually be counterproductive. The Committee, through its decision, was a landmark in emphasizing the fact that human rights law protect all individuals from discrimination, particularity in this case, homosexuals. Probably the most valuable outcome of this decision was the fact that the Australian State passed a law that overrode all legal norms which forbade homosexuality – as it is in breach of the ICCPR provisions. The fifth and last case that will be analyzed is a recent one, used to portray if there were any changes in the State's attitude towards transgenders and, if so, if they were positive or negative. In the case of Christine Goodwin v the United Kingdom, the applicant claimed that she had to face many obstacles in achieving what she wanted most: to become a woman. Christine Goodwin was born in 1937, as a man, but always felt that she was part of the opposite sex. This feeling culminated, after many hormonal treatments, with a successful sex-change operation. Nevertheless, the UK did not legally recognize her as a woman using, as a reasoning, the precedent created by Corbett v Corbett . This lead to “difficulties concerning her national insurance (NI) contributions. As legally she is still a man, she has to continue to pay NI contributions until the age of 65. If she had been recognized as a woman, she would have ceased to be liable at the age of 60” 121 . The applicant also made reference to the difficulties she had during and following her gender re-assignment in aspects like employment, social security and marriage. Thus, Miss Goodwin felt that the State of United Kingdom was in breach of articles 8 (the right to private and family life), 12 (the right of men and women to marry), 13 (the

120 Ibid. 119 121 http://sim.law.uu.nl/sim/caselaw/Hof.nsf/1d4d0dd240bfee7ec12568490035df05/a3ff62c98b5116c141256bf4003c807b? OpenDocument [accessed 05.04.2012]

34 right to effective remedy), 14 (the right to nondiscrimination) of the European Convention on Human Rights. The European Court of Human rights decided, unanimously, that there has been a breach of both, article 8 and article 12, but that article 13 “could not be interpreted as requiring a remedy against the state of domestic law” 122 . As regard to article 14 the Court felt that there was no reason to address these issues, as finding that the State was in violation of article 8 and 12 would bring sufficient just satisfaction 123 . Regarding article 8, the Court stated “[t]hough there were no conclusive findings as to the cause of transsexualism, the Court considered it more significant that the condition had a wide international recognition for which treatment was provided. It was not convinced that the inability of the transsexual to acquire all the biological characteristics took on decisive importance” 124 . This is an important statement as it validates the idea that homosexuality and/or transsexualism are no longer perceived as those controversial and immoral conducts, but they are, in fact, different manifestation of sexuality (as there are differences in skin-color, ethnicity or cultural background). Moreover, the Court's opinion was that, due to the lack of material to prove the contrary, any changes in ones birth- certificate, in this case the shift from man to woman, do not affect third parties 125 . Not only this, but the European Convention on Human Rights respects, protects and promotes human freedom and human dignity. Though the discrimination that the applicant had to face was not on a daily basis, it does not undermine its adverse effects on an already vulnerable individual. Considering article 12, the Court's opinion is that, even if this article allows marriage expressly between man and woman, due to all the “major social changes in the institution of marriage since the adoption of the Convention as well as dramatic changes brought about by developments in medicine and science in the field of transsexuality” 126 , there should no longer be any legal liaisons to ones biological gender. Additionally, there should be no impediment in marrying in ones re-assigned gender, as, with respect to article 8, “a test of congruent biological factors could no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual”127. Another reason consists of the benefits that arose from the harmonization of both the physical and psychological

122 Ibid. 121 123 Ibid. 121 124 Ibid. 121 125 Ibid. 121 126 Ibid. 121 127 http://www.crisalide-azionetrans.it/Corte_eu_dirittiumani_Goodwin.html [accessed 05.04.2012]

35 gender, concluding with the fact that the applicant is a woman, and should have the right to marry any man she pleases. Thus, the Court did not find any reason for which any transsexual cannot or should not marry under any circumstances, the State breaching article 12 by forbidding the applicant's right to marry in her re-assigned gender 128 . Concluding sub-chapter 1 of chapter III, it is clear how social reality has created new ideas in legal reality: nowadays, transsexualism is not perceived as an anomaly in society, transgenders no longer have to face inequality in marriage, social security or work environment, etc. The main reason is that the perception on ones' gender has shifted from biological sex ('assigned' at birth and revealed by chromosomes, gonads and genitalia) to the harmonization between physical and psychological gender, the former of which can be re-assigned trough surgery and is determined by chromosomes, gonads, hormonal secretion, reproductive organs, external genitalia, and self-identity. The five cases presented in this sub-chapter were chosen with the purpose of demonstrating the shift in the human rights law paradigm. Most of them make reference to the right to marry of an individual, but as observed, the institution of marriage has more implications than two people in love with a wish to wed. Re Anonymous v New York was the case that drew attention on the difficulties transgenders face, not only socially, but legally as well, and rose several questions concerning ones' gender, from a judicial point of view. It also made clear that such an issue must be discussed and analyzed in comparison with all medical discoveries and theories on transsexualism, in order to obtain the most accurate answers. As to its' decision, it seemed to be a breakthrough in legal jurisprudence, focusing on more than the biological sex, but on ones' mental health and happiness. Nevertheless, the decision in Corbett v Corbett was in clear dissension with the former, reasoning that what is more important than ones' personal fulfillment, is the maintenance of evolution (thus marriage should take place between individuals which are biologically male or female). Marriage is the institution that preserves family, stability and continuity, continuity ensured by procreation, and procreation ensured by the existence of proper reproductive organs. Later, opinions that contradicted this point of view were formulated, mainly based on the fact that many situations when there was no possibility of procreating existed, and they were the result of surgeries – for example , needed for various medical reasons 129 .

128 Ibid. 127 129 Maya Sabatello, 'Advancing Transgender Family rights through Science: A proposal for an Alternative Framework' , Human Rights Quarterly, Vol 33, pag. 43-75, 2011

36 Though the second case presented was able to create a precedent in common law, in 1976, in the USA another important decision was issued by the Court of New Jersey. This decision emphasized transgenders' necessity of unifying both the mental and the physical aspect, many undergoing sex- change operations – which is, in fact, a very powerful argument when it comes to the commitment they have to physically be the gender they feel they already are. Moreover, the decision of M.T. v J.T. was based on the knowledge that normal intercourse did exist between the applicant and the plaintiff, the fact that M.T. was a post-operative male to female transgender not preventing the existence of a normal heterosexual relationship. The last case, Christine Goodwin v the United Kingdom, is the most recent of the test cases presented in this sub-chapter, and it is valuable not only because of its' decision, but because of the steps taken by the applicant, Miss Goodwin. She had exhausted all national legal actions, in scope of obtaining a birth-certificate that would prove she is a woman, and searched for protection of her rights within the jurisdiction of the European Court of Human Rights. The decision of the Court was able to change the direction in which the English jurisprudence was heading. No longer would the conclusions of Corbett v Corbett be the basis of future decisions in transgender cases, because now, the State had to ensure the same provisions as the European Convention on Human Rights. In relation to this case, articles 8 and 12 were considered by the European Court to have been violated. As to article 8, that protects the right to private and family life, the Court felt that even though there was no known specific cause for transsexualism, as long as there was a cure, seeking this cure should not result in a negative response from the State when ensuring a legal application as well – for example by recognizing the new gender of a transsexual in issuing a new birth-certificate. Regarding article 12, the Court's opinion was that, considering the developments in science and medicine in the matter of transsexualism, there should be no impediment for post-operative male-to-female or female-to-male transgenders to marry in their re-assigned gender. The decision was a powerful statement to the evolution of the jurisprudence in gender identity issues. The fourth case was chosen to portray the discrimination homosexuals have to face, as the 'Yogyakarta Principles' protect the individuals with different gender identity, but with different sexual preferences, as well. Toonen v Australia was a landmark case in forbidding criminalization of consensual sexual relations between adult males. The decision was based on the provision of article 17 of the International Covenant on Civil and Political Rights, article which protects the right to privacy. The Human Rights Committee, as the body of experts in charge of monitoring the implementation of

37 the ICCPR by State parties, was in charge of deciding on the facts of this case, and it concluded that any law that criminalizes homosexual conduct is a clear violation of the right to privacy of each and every individual. Ergo, the test cases presented in the current sub-chapter were chosen to show how the matter of transsexualism has been dealt with, both in national law, and in human rights law. They also represent the evolution in transgender jurisprudence not only as a conclusion to the developments in science or medicine, but as an outcome of changes in the attitude society has towards transsexualism and homosexuality, as well. The 'Yogyakarta Principles' is a document that validates this evolution and it is also that step forward in developing common international norms for people of all gender identities and sexual orientations, so as to stop the discrimination and hate towards these individuals.

III 2. How could have the Principles contributed in these cases?

In order to reach a good and valuable answer for the central research question, the cases presented in sub-chapter of this paper's current chapter, will be analyzed in light of the Yogyakarta Principles to see how the Principles could have contributed in these legal situations. With regards to the first case, Re Anonymous v New York , the applicant encountered legal problems when trying to have her new gender recognized by the state in question. Principle 3 of the Yogyakarta Principles, which is the right to be recognized before the law, were it to be implemented both on an international level, but more importantly, on a national level within individual States' law, could have been called into question by the deciding Court in its motivation. Thus, were the Yogyakarta Principles adopted, this principle would entitle the applicant to have her new gender recognized through a legal paper (in this case, a birth-certificate). Moreover, Principle 3 does not only envisage any individuals diverse sexual orientation or gender identity, but it also offers six specific obligations for States: obligations B and C, that States “[t]ake all necessary legislative, administrative and other measures to fully respect and legally recognise each person’s self-defined gender identity” 130 , and “[t]ake all necessary legislative, administrative and other measures to ensure that procedures exist whereby all State-issued identity papers which indicate a person’s gender/sex — including birth

130 'Yogyakarta Principles ', Principle 3

38 certificates, passports, electoral records and other documents — reflect the person’s profound self- defined gender identity” 131 . As for the second case, Corbett v Corbett , the inability to be recognized as a person of the female gender was the main reason for the negative ruling against the defendant, a male-to-female transgender who had been married for only 14 days before her husband filed for divorce on the basis the she was born a man, and thus, that the marriage was void. If the provisions of the Yogyakarta Principles would have been part of the legal framework of the United Kingdom, the decision would have been different, had both Principles 3 and 24 been invoked. As mentioned above, Principle 3 refers to the right to be recognized before the law, and Principle 24 protects the right to found a family of any individual: “Everyone has the right to found a family, regardless of sexual orientation or gender identity. Families exist in diverse forms.” 132 The provisions of Principle 24 have a different interpretation on what constitutes 'family' as a social entity, not just as a consequence of the legal procedure of marriage, but views 'family' as unbound by marriage, with the ability to exist in various forms, between all individuals. In light of Principle 24, the obligations set to States are in contradiction with the arguments that constituted the basis of the Court's decision in Corbett v Corbett ; the Court stated that because the defendant was born a man, there could be no chance for procreation and thus fulfillment of the primary role of the family; however, the Yogyakarta Principles in Principle 24 ensure “the right to found a family, including through access to adoption or assisted procreation” 133 . The decision of M.T v J.T was a positive one for the transgender community, as, since the plaintiff had already obtained a birth-certificate attesting her new gender as a female prior to the marriage, she was entitled to alimony from her ex-husband. The decision was based on expert medical witnesses and the Judge's interpretation of current legal framework, despite the defendant's claim that, having been born a man, the marriage was void. It must be noted that there were also medical witnesses from the defendant's side who argued that sex is the decisive factor when discussing marriage, and not gender, be it naturally or surgically-assigned: “Dr. T reiterated that it was the anatomy alone which determined the real sex of an individual and that gender in contrast to sex was not a significant factor” 134 . The problem with the Court's decision is that it did not guarantee continuity in transgender

131 Ibid. 130 132 'Yogyakarta Principles' , Principle 24 133 Ibid. 132 134 http://www.leagle.com/xmlResult.aspx?page=2&xmldoc=1976217140NJSuper77_1209.xml&docbase=CSLWAR1- 1950-1985&SizeDisp=7 [accessed 07.04.2012]

39 jurisprudence, as a new Judge might have a new interpretation on a similar case. The Yogyakarta Principles offer rights and obligations which are of limited interpretations, through Principle 3 and Principle 24, the former stating that States shall “[e]nsure that changes to identity documents will be recognised in all contexts where the identification or disaggregation of persons by gender is required by law or policy” 135 . In other words, in light of the Yogyakarta Principles, the plaintiff's recognition as a woman via a birth-certificate should have been sufficient to entitle her to alimony from her former spouse. The facts of the case Toonen v Australia revolved around discrimination, under the form of criminalized homosexual conduct in the state of Australia. The reason for maintaining the legal norms which place homosexual behavior outside the law, the State claimed, was the keep HIV/AIDS infection in check, as homosexual intercourse is far more likely to propagate the virus than normal intercourse. The Human Rights Committee concluded that Australia was in violation of Article 17 of the ICCPR, article mandating the right to privacy, justifying that not only criminalizing homosexual conduct would lead to the spread of the infection going 'underground', which is to say that those infected would not contact authorities for fear of prosecution, but also that any sort of sexual conduct between consenting adults is part of any individual's private right and is of no public concern. Taking into account the Yogyakarta Principles, Principle 2 specifically states that “[e]veryone is entitled to equality before the law and the equal protection of the law without any such discrimination whether or not the enjoyment of another human right is also affected” 136 , but also that States should “[r]epeal criminal and other legal provisions that prohibit or are, in effect, employed to prohibit consensual sexual activity among people of the same sex who are over the age of consent, and ensure that an equal age of consent applies to both same-sex and different-sex sexual activity” 137 . Principle 6 restates the right to privacy, making it compulsory for States to “[t]ake all necessary legislative, administrative and other measures to ensure the right of each person, regardless of sexual orientation or gender identity, to enjoy the private sphere, intimate decisions, and human relations, including consensual sexual activity among persons who are over the age of consent, without arbitrary interference” 138 , but goes even further and, more importantly for this case, “[e]nsure[s] that criminal and other legal provisions of general application are not applied

135 Ibid. 130 136 'Yogyakarta Principles' , Principle 2 137 Ibidem 136 138 'Yogyakarta Principles' , Principle 6

40 to de facto criminalize consensual sexual activity among persons of the same sex who are over the age of consent” 139 . The last case presented in the previous sub-chapter, Christine Goodwin v The United Kingdom is also the most recent one, and thus, the most up-to-date with current legal and medical reality. The European Court's decision reflects the evolution in both medical and legal perspective of the particular situation of transgederism, as opposed to the national English Court which still retains the precedent created by Corbett v Corbett and the outdated views on transgenders' legal status. Were the Yogyakarta Principles to apply to this case, the national decision would have been in tune with the European Court of Human Rights' decision, due to Principle 3, Principle 13, and Principle 24. Principle 3 ensures the right to recognition before the law, “[e]ach person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom” 140 , and thus, should be acknowledged by the law as one of the fundamental parts of human dignity. The European Court went further, stating that as long as there is a treatment for transgenderism, it should be applied, as access to proper medical care is guaranteed by law. Principle 13 refers to the right to social security and other social benefits: “Take all necessary legislative, administrative and other measures to ensure equal access, without discrimination on the basis of sexual orientation or gender identity, to social security and other social protection measures, including employment benefits, parental leave, unemployment benefits, health insurance or care or benefits (including for body modifications related to gender identity), other social insurance, family benefits, funeral benefits, pensions and benefits with regard to the loss of support for spouses or partners as the result of illness or death;” 141 . This principle is particularly relevant for this case, as one of the main complaints was recognition in front of the law as a woman, which implied paying NSA contributions until the age of 60, rather than the age of 65, as is the case for men. As for Article 12 of the ECHR, similar provisions are found in Principle 24 of the Yogyakarta Principles. Using the provisions of article 12, the ECHR decided that given the leaps in social status of transgenders, perspective on family life and medicine, marriage should no longer be viewed as the joining of a man and woman, but a joining of individuals, regardless of their sex. Principle 24 of the Yogyakarta Principles states that “[f]amilies exist in diverse forms. No family may be subjected to discrimination on the basis of the sexual orientation or gender

139 Ibidem 138 140 Ibidem 130 141 'Yogyakarta Principles' , Principle 13

41 identity of any of its members” 142 , going even further in declaring marriage as a union between any two consenting adult individuals. Concluding, one can easily observe the effect the Yogyakarta Principles would have had, should they had been accepted in international legislation, resulting in an implementation at national levels as well. The main contribution that the principles would have had in the decision-making process of these cases, is that “lesbians, gay men, bisexuals, transgendered people and intersexuals are all human beings and are equally entitled to human rights” 143 . This statement, found also in the Yogyakarta Principles (“Observing that international human rights law affirms that all persons, regardless of sexual orientation or gender identity, are entitled to the full enjoyment of all human rights, that the application of existing human rights entitlements should take account of the specific situations and experiences of people of diverse sexual orientations and gender identities” 144 ) should, by default, allow equal treatment between two individuals in front of the law, regardless of their gender or sexual identity.

III 3. Would the Principles offer improvement for these cases?

“Developed in response to patterns of abuse targeting people because of their actual or perceived sexual orientation or gender identity, the Principles address such serious concerns as extrajudicial executions, torture, and other violence, access to justice, privacy, non-discrimination, rights to freedom of expression and assembly, employment, health, education, immigration and refugee issues, public participation, and a range of other rights” 145 . The sub-chapter aforementioned included the legal norms and provisions needed to tackle the issues which LGBTI community faces, from a legal standpoint. But would they actually be effective and offer improvement from a practical point of view and manage to offer the now-mandatory legal framework that will create a healthy legal climate for the LGBTI group worldwide. First of all, an argument for which the Principles would offer improvements in all the five cases presented, and, perhaps, in other similar situations as well, is the fact that the Yogyakarta Principles is a unified document, of the most important human rights provisions, offering continuity. It is important that within its principles, the document envisages not only the essential rights of all human beings, but

142 'Yogyakarta Principles' , Principle 24 143 Douglas Sanders 'The role of the Yogyakarta Principles' , August 4 2008, page 6 144 'Yogyakarta Principles' , Preamble 145 Stephanie Farrior 'Human Rights Advocacy on Gender Issues: Challenges and Opportunities' , Journal of Human Rights Practice Vol 1, Number 1, pp. 83–100, March 2009, page 88

42 also offers “detailed recommendations to States” 146 , thus creating a clear legal framework, as their text leaves little room for interpretations by both lawyers and states. Moreover, the Principles implement the universal rights of human beings directly into the national legislation by being the common denominator of these rights. This creates an improved legal system, which would lead to less cases being handled by international courts, and thus countries will no longer need to solve internal legal actions with the help of international organisms. The most valuable improvement that the Yogyakarta Principles would bring not only to the five cases presented, but to all cases referring to transgenders and/or homosexuals, is that they offer clear and valid – both from a medical point of view and a legal point of view – for the terms sexual orientation and gender identity: “‘sexual orientation’ to refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender” 147 ; “‘gender identity’ to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms” 148 .

146 Ibid. 144 147 Ibid. 144 148 Ibid. 144

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Chapter IV - How would the Yogyakarta Principles help improve the situation of transgender people, when examined in the framework of existing bodies of international non-discrimination norms?

The fourth and last chapter of this paper aims to answer what is also the central research question, summing up all the conclusions drawn from the previous sub-chapters. Before discussing the answer in and of itself, it is worth mentioning that the question is an open one, and that thus, there is no yes/no answer, but rather, an argumentation based on conclusions obtained from the research developed in the rest of the paper. “The research question is formulated as an open question, i.e. a question that does not allow for a yes/no answer. An open question invites the researcher to do research. A closed question, on the other hand, does not, because a closed question suggests that the researcher already knows the answer” 149 . “Another criterion for a good research question concerns its grounding in a theoretical framework” 150 . The current paper bases its theoretical development around the document 'Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity'. The reason behind choosing this document as a theoretical basis was that, in contemporary international law, it is the most comprehensive legal paper concerning the LGBTI community, particularly for this paper, transgender individuals and their rights, in a legal system which has, up until now, been inconsistent in offering effective remedies for their legal gender-related problems. The document's aim is to end all forms of discrimination against transgenders and all LGBTI people, by enforcing the international standards it develops, in a clear manner, so that all States understand the vulnerability of transgenders and individuals that suffer because of their sexual preferences. Moreover, this is a unified document, containing both the rights needed to protect the LGBTI community, and detailed recommendations to States designed to ensure the rightful application of the Principles. This leads to the conclusion that States will no longer try to accept or implement only those norms they feel are more suitable for their territory through the peace-meal approach. Characteristic of this document is the fact that all its Principles are based on already existing legal norms, making it a statement of what international human rights law says at this particular point in

149 jM.G. 1.1zermans & G.A.F.M. van Schaaijk A Systematic Approach to Legal Research, June 2006 150 Ibidem 149

44 time, and not an aspirational document 151 . 'Yogyakarta Principles' protect one group of people in particular (the LGBTI community) by the same means as all other individuals are protected (through the universal provisions found in multiple international covenants and treaties), and by the same legal provisions which have been applied by many States and for extended periods of time. Chapter 2 validates the Principles' purpose to promote rights and legal standards that are already binding, their texts being compared with fundamental texts defining and regulating human rights worldwide: the Universal Declaration of Human Rights (UNDHR), the Convention for the Protection of Human Rights and Fundamental Freedoms (CPHRFF), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Charter of Fundamental Rights of the European Union (ChFREU), the American Convention on Human Rights (ACHR) and the Arab Charter on Human Rights (AChHR). Being based on these fundamental texts in human rights law, the document might seem pedantic and repetitive, but is, at the same time, didactic, as it constantly shows, throughout its length, that no 'new rights' are being used or developed in order to protect the LGBTI community, but rather, it focuses and targets those universal rights, fundamental to all human beings, on lesbians, gays, bisexuals, transgenders, and intersexuals 152 . What is new regarding the Yogyakarta Principles are the clear definitions it gives to the terms “sexual orientation” and “gender identity”, but also crystallizing the kinds of discrimination LGBTI are subjected to: “violence, harassment, discrimination, exclusion, stigmatisation and prejudice [...] undermine the integrity and dignity of those subjected to these abuses, [and] may weaken their sense of self-worth and belonging to their community, and lead many to conceal or suppress their identity and to live lives of fear and invisibility” 153 Due to these improvements, the UN High Commissioner for Refugees, in its 'Guidance Note on Claims for Refugee Status Under the 1951 Convention Relating to Sexual Orientation and Gender Identity' has quoted the 'Yogyakarta Principles' “ multiple times in providing guidance on how sexual orientation or gender identity can be the basis of a well-founded fear of persecution” 154 , thus proving the Principles' worth in underlining both their issues and their needs. Chapter 3 represents the practical statement of this paper when referring to the issues of discrimination that the LGBTI community faces, in particular transgender people. In these various cases and legal

151 Douglas Sanders 'The role of the Yogyakarta Principles' , August 4 2008, pg 5. 152 Douglas Sanders 'The role of the Yogyakarta Principles' , August 4 2008, pg 6 153 'Yogyakarta Principles' , Preamble 154 Stephanie Farrior 'Human Rights Advocacy on Gender Issues: Challenges and Opportunities' , Journal of Human Rights Practice Vol 1, Number 1, pp. 83–100, March 2009, page 90

45 situations their gender played an important factor, both in civil lawsuits and in lawsuits against the state. Most of the issues faced by transgenders in the five cases discussed revolve around the lack of certainty about not only legal issues but also medical issues that transsexualism and homosexuality entail, sometimes leading to confusions in the legal system and thus to uninformed legal decisions. Even though transgender litigation has not been able so far to present a definitive understanding of what sex is, its greatest potential is to draw attention to manifestations of gender discrimination. 155 Although some of the cases were resolved in a positive manner, according to nowadays perception of similar situations, it was evident that the 'Yogyakarta Principles' would have given a clear and consistent solution to such cases, without the need for interpretation of statements by expert witnesses or the involvement of international courts. To finally answer the question 'how would the Yogyakarta Principles help improve the situation of transgender people, when examined in the framework of existing bodies of international non- discrimination norms?', the answer must be given in several layers. The most important way the 'Yogyakarta Principles' would help improve the situation arises as a consequence of it being a unified comprehensive framework: along with it, adopting the rights included in these Principles would also mean adopting the provisions of most international human rights treaties and conventions. These customized rights would ensure that under no circumstance, are transgenders to be the target of discrimination of any kind, and, thanks to the recommendations set forth, States can no longer hide behind traditions, beliefs and religion when treating discrimination. Because of its reliance on other international human rights documents and because of its structure, it demonstrates that transgenders and the LGBTI community in general are entitled to the same rights as any other individual, regardless of sex, gender, or sexual orientation. From a theoretical standpoint, the most eloquent provision is the inclusion of the right to self-determination of each individual, as it is the central component of sex, and as such “effect change by encouraging courts and society to conclude that the determination of one's sex should rest with the individual and not the state” 156 . From a legal practice point of view, the 'Yogyakarta Principles' would offer those notions that contribute to a much improved and up-to-date legal system, by offering direct guidance in all possible cases that involve a person's sexual orientation or identity. It is meant to be turned to as one would turn to any other law, be it fiscal law, environmental law, etc., and thus, offer unequivocable solutions to

155 Taylor Flynn, 'Transforming the debate: Why we need to include in the struggles for sex and sexual orientation equality', Columbia Law Review, Vol. 101:392, 2001, pag. 392-420, page 395 156 Ibidem 155

46 everyday cases. Its Principles, both in appearance and functionality, are similar to articles from any other law, ergo, can and should be invoked in a court of law. Were the 'Yogyakarta Principles' to be adopted by state legislation (the UN is currently trying to ensure this implementation by adopting the 'Yogyakarta Principles' itself), they would offer improvement to the LGBTI community by removing the veil of taboo from their current social stigma, and ensuring that future generations will have no qualms with accepting transgenderism, homosexuality, and all other variations of sexual preferences (specifically talking about consenting adults), as history has shown us possible with women's rights and .

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