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How Could the Yogyakarta Principles Help Improve the Situation Of How could the Yogyakarta Principles help improve the situation of transgender people, when examined in the framework of existing bodies of international non-discrimination norms? Alexandra PISA, ANR 835165 University of Tilburg International and European Public Law, Human Rights 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 human rights 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 sex, 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 history), 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, treaty 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 prejudice, discrimination and even attack” 1, the same being true nowadays for the lesbian, gay, 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 'sexual orientation' and 'sexual identity' is the 'Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity'. This document was the outcome of a meeting that occurred in Indonesia, 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' , Oxford University Press, 2010, page 331 2 Ibid. 1, page 341 3 well, to find a way to combat these abuses. 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 gender identity 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 transgenders. 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 treaties, 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 dignity 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 Gadjah Mada University 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 about the numerous situations of discrimination based on sexual differences and aimed to find a way to
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