The Yogyakarta Principles +10

The Yogyakarta Principles +10

Reflection

UN bodies have clearly and consistently affirmed that all individuals enjoy the protection of the UN human rights system if they face discrimination or violence on grounds of sexual orientation, gender identity and expression, and sex characteristics. Human rights are an evolving concept. A living tree. The Yogyakarta Principles plus 10 reflects on how international law has evolved in this area.

On 10 December 1948, the UN General Assembly adopted the Universal Declaration of Human Rights (UDHR). A non-binding document per se, the UDHR paved the way to an array of human rights treaties that oblige ratifying UN member states to implement key human rights standards. The first binding UN treaties encompassed a broad set of civil and political rights[1] on the one hand, and social, economic and cultural rights[2] on the other. It was only in later years that treaties on more specific forms of discrimination and violence were adopted. These include the Convention on the Rights of the Child (CRC), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention Against Torture (CAT), the Convention on the Rights of Persons with Disabilities (CRPD), to name a few.

The evolution of human rights within the UN system reflects a recognition that grave and systemic human rights violations need more attention and that vulnerable groups, such as women, children, migrants, racialized people, or people with disabilities, need more protection. That said, no UN treaty mentions trans or lesbian, gay, bisexual, and intersex people (LGBTI) explicitly. Back in the 1940s and throughout most of the 20th century, key UN documents were not reflective of discrimination and violence faced by LGBTI people. Yet human rights entities within the UN system, such as the Human Rights Council, treaty bodies or special procedures, have gradually started to recognize these abuses - first on grounds of sexual orientation, and in recent years increasingly about gender identity, gender expression, and sex characteristics (SOGIESC). UN bodies and member states have formulated a plethora of recommendations, concluding observations, general comments and decisions regarding these violations. The UN’s commitment to addressing SOGIESC issues consistently is also signaled by the establishment of the UN Independent Expert on SOGI in 2016.[3]

The Yogyakarta Principles (2006)

In November 2016, distinguished human rights experts, including UN mandate holders, convened to compile a set of principles clarifying how international human rights law applies to sexual orientation and gender identity. The resulting Yogyakarta Principles[4] (YPs), consisting of 29 principles, were a groundbreaking document, extensively used since by human rights mechanisms and advocates.[5] States have also officially endorsed the Principles, Canada, Chile, Czech Republic, Finland, Germany, the Netherlands and Uruguay - the latter two specifically with regards to trans related laws policies.[6] The famous Maltese Gender Identity, Gender Expression and Sex Characteristics (GIGESC) Act has also been applauded for implementing standards of the YPs.

The Yogyakarta Principles plus ten (2017)

Since 2016, UN human rights entities have continued to address SOGIESC based discrimination and violence in a systematic and consistent manner and as a result, human rights standards related to SOGIESC have significantly evolved. To reflect these progressive changes, the YPs were complemented with a set of new principles in 2017.

The YP plus 10 was adopted on 10 November, 2017. The YP plus 10 document reflects developments in international human rights law and further includes the distinct grounds of gender expression and sex characteristics. While the YPs were lacking mentioning intersex issues in great detail, the YP+10 include violations on the ground of SC as their cornerstone. The two documents are to be read together - the YP plus ten do not amend or overwrite the original YPs, but add to them.

Principles relevant for trans people’s human rights

The YPs include nine Additional Principles and 111 Additional State Obligations. All principles and state obligations have relevance for trans people’s human rights, but some address specific violations that trans people face. These include, inter alia, the right to gender recognition and the right to sanitation.

The right to legal recognition

The right to legal recognition derives from the right to recognition before the law, previously Principle 3 in the original YPs. Legal gender recognition is key for non-discrimination as it provides social and legal recognition to trans people. Yet, in most parts of the world, trans people must meet invasive and discriminatory requirements to have their gender marker changed on their documents.

UN and regional human rights bodies such as the Council of Europe, have created a body of progressive jurisprudence over the past ten years, that is now reflected in the YP plus 10. Principle 31 sets out the right to legal recognition “without reference to, assignment or disclosure of” sex, gender, or SOGIESC; the right to ID documents; and the right to change gendered information, such as gender marker and name, on these documents.

As a key pillar of this right, Principle 31 sets out that states have an obligation to end the registration of sex and gender on documents. In practice, this would mean issuing ID documents that do not feature the usual “M” or “F”. The argument behind this provision is that including sex or gender information has no legitimate purpose - as recently echoed by the German Constitutional Court in a 2017 decision.[7] The German Court also noted that the registration of sex, in combination with only having male and female options, is discriminatory. Although the case was about an intersex person, the Court’s argument is equally applicable to non-binary trans people who do not identify with a binary gender.

Recognizing that in most jurisdictions ending sex registration may still be a far reaching goal, the Principle describes state obligations for the meantime. These include ensuring that legal recognition is quick, transparent, and accessible; that it provides for a multiplicity of gender marker options; that it has no eligibility requirements and is based solely on self-determination; it does not exclude people on the basis of their immigration status or criminal record.

The right to sanitation

The right to sanitation is perhaps not the first to come to mind when one thinks about LGBTI rights. It is however a human right that has been a battlefield for LGBTI and in particular, trans and gender non-conforming people.

The right to sanitation was first recognized as a human right by the UN General Assembly in 2010 and in 2014 the UN established a thematic mandate to focus on the issue. In a 2016 thematic report on gender equality in the realization of the human rights to water and sanitation, the Special Rapporteur, Mr. Léo Heller, recognized that LGBTI people face particular barriers in exercising these rights. As he noted, LGBTI people face discrimination in accessing sanitation, menstrual hygiene products and toilets and routinely face harassment, violence, and in some cases arrest when trying to use a bathroom.[8]

The Special Rapporteur highlighted the particular vulnerability of trans and gender non-conforming people, noting that some states only allow individuals to use bathrooms that match their gender assigned at birth. He affirmed that this is a violation of trans people’s right to enjoy basic services and also exposes them to discrimination and violence. In fact, bathrooms have been a major backlash area against trans people, see for instance the infamous bathroom bills in the US in particular. Heller also emphasized the issue of discriminatory bathroom rules in schools, noting that to avoid harassment, many trans youth avoid going to the toilet during school hours. This can cause urinary tract infections or kidney problems and can also have a negative impact on trans students’ performance at school.[9] 

In accordance with the Special Rapporteur’s report, Principle 35 of the YP+10 calls for “equitable, adequate, safe and secure sanitation and hygiene, in circumstances that are consistent with human dignity, without discrimination, including on the basis of sexual orientation, gender identity, gender expression or sex characteristics.” The state obligations include ensuring safe and adequate public sanitation facilities, including in educational and employment settings, or prisons.

***

Trans and LGBI people no longer have to make the argument that international human rights law protects them. UN bodies have clearly and consistently affirmed that all individuals enjoy the protection of the UN human rights system if they face discrimination or violence on grounds of SOGIESC.

Human rights are an evolving concept. A living tree. A constant work in progress. As such, human rights standards related to SOGIESC will continue to evolve at the UN and at regional fora in the next years. Surely, a future YP plus twenty will reflect this progress.

 

[1] International Covenant on Civil and Political Rights (ICCPR). 1966. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

[2] International Covenant on Economic, Social and Cultural Rights (ICESCR). 1966. https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx

[4] YPs.

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