Ten years after the creation of the Yogyakarta Principles, “Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity”, Caroline Ausserer speaks with Professor Stephen Whittle, one of the experts that elaborated them.
Caroline Ausserer: You were part of the human rights experts team, who elaborated the Yogyakarta Principles at Gadjah Mada University in Yogyakarta, Indonesia in November 2006. Could you tell us more about the history of the Yogyakarta Principles (YYP) and the emergence of this meeting? How has the idea to create these principles come into being? What were the main reasons for it?
Stephen Whittle: It was a complete surprise. I got an invitation and could not believe it because nobody ever asked us anything. As trans activists, one of the reasons that we set up the separate trans organisation in the UK “Press for Change”, which I was part of, was because our voice didn't exist otherwise. I was involved in the development of Transgender Europe (TGEU) and in 2007 I became president of WPATH, the first non medical person and first trans person to have that position. I suspect I got invited because Robert Wintermute was one of the experts and he was very much engaged with the International Commission of Jurists (ICJ).
We had known each other for several years and had worked behind the scenes closely together through ILGA-Europe, particularly ensuring that what Press for Change did, when taking cases to the European Court of Justice or the European Court of Human Rights, would not impact the rights of lesbian and gay people. So my invitation came out of the blue, two weeks beforehand, oh my God, I have to go to Yogyakarta – where is that? I went with an open mind, thinking this was an opportunity to work with amazing people.
Stephen has been an advisor to the UK, Irish, Italian, Japanese and South African governments, the Council of Europe & the European Commission. He advises lawyers and regularly writes court briefs, or is an expert witness in courts across the world. In 2015 he was appointed special advisor to the Parliamentary Women & Equalities Committee Inquiry into Transgender Equality. In 2005 he was made an Officer of the Order of the British Empire (OBE, 2005) in the Queen’s New Year’s Honours list for his work on transgender rights. Stephen and his wife Sarah married in 2005 after Stephen gained legal recognition as a man, but have been partners for 37 years. They have 4 children by donor insemination; the eldest has graduated and is teaching in China, the others are currently at University.
How would you characterize your role during the meeting? What were the difficulties and challenges during the elaboration of the YYP?
My actual role ended up being the one making sure that there was trans inclusivity, that there was within the work an understanding of the complexity of trans identities and trans lives and that we moved beyond a binary gender notion. The other thing that was particularly important for me, partly because of our own family history – my partner had immense difficulties getting the right to donor insemination –because she lived with me.
I felt that it was crucial that what we did was inclusive of LGBT families, but also acknowledged wider definitions of family. So that what we proposed would work for a lesbian couple with 2.4 children in New York, and two women who were not necessarily lovers bringing up 13 children orphaned by AIDS in the middle of Nigeria. I wanted to make sure that what we did could encapsulate all kinds of families in order to ensure that states recognized their responsibility towards families.
What were the difficulties?
The key difficulty was that there is a general principle that all courts have to make paramount the best interest of the child. But who is deciding what is in the best interests of the child? It is often decided by people who live in heteronormative male-led white middle class frameworks. So finding a way to be inclusive in the text of all sorts of families, at the same time acknowledging the best interest of the child as being paramount.
There is for example the principle 24, the right to found a family.
Yes, there are different parts referring to it. When I first got your email, I got out my notes of that time. I can read “remove that”, “include that”, what about educational material? etc. A full book of notes, going through the text really closely asking ourselves is this really inclusive and can the courts in the world work with it. This was another question, it was not just a UK legal system of common law or a European system of Roman law, but we were looking at tribal legal systems and Asian legal systems, Sharia-law etc. and trying to frame within that. I'd been fortunate enough that I had supervised PhD students from all over the world looking at comparative structures, so I had a fairly broad knowledge of different legal systems.
In the end, where you satisfied? What did the finalized YYP mean at this stage of trans activism – was it regarded as a cornerstone and historical achievement to support the cause or have there been criticisms and controversies?
What has surprised me was how little criticisms there has been of the principles. I think that comes down to the wide range of people who were there. The fact that we had people that had been Supreme Court Judges from different countries made a real difference to our knowledge. The principles still stand up very well, they have sat very well with human rights values that we currently have within the UN and within Europe.
It was important that it was not an official document of the United Nations, but at the same time it placed within the UN framework a clear and accurate statement of the rights of people regardless of their sexual orientation, their gender identity or their birth status. They have become almost part of the UN system - often it is assumed that the YYP came from the UN - they are acknowledged by legal experts worldwide as being a clear statement of human rights values for LGBTI people.
They provide a constant reference point for lawyers and legislators to look at and to compare their work with. Looking at, say, for instance the principles became a guiding statement when the Council of Europe Recommendation of SOGI was developed. The same with the Charta of the Fundamental Rights. They are a guiding set of principles, that's their real role.
If you look back these 10 years since when the YYP were formulated, what kind of impact did the principles have? Globally - and specific in your region? How have the principles been received and applied by governments, equality bodies, NGOs, the community and in particular the trans-community?
Civil servants are not aware of them until you raise them, but that is part of the process of consultation and engaging stakeholders within legislative development. Certainly here in the UK they were a reference point in the battle for same-sex marriage. In 2004 when the Gender Recognition Act was drafted, it was insisted that married couples got divorced if one partner was trans, then the couple could get a civil partnership once gender recognition had been obtained. If Government was going to legislate to allow same-sex marriage they had to resolve that injustice – and the YYP say it is an injustice. Part of the consultation process was about how those couples were given back their marriages at the time of the Marriage (Same Sex Couples) Act 2013 without having to create a complex and very expensive way of doing it?
Are you aware if they are used as political instrument and tool, eg. by LGBTI activists in your region? Do you still use them?
Yes, I use them all the time. I do a lot of work with asylum seekers at the moment and they are a way of raising the issues before asylum tribunals; the principles of what they should be addressing when they are looking at the rights of LGBTI asylum seekers. So, for example, an Indian transman is currently seeking asylum; key to his case is the fact when he reported a crime to the police in India, the police then assaulted him. The system of policing has not changed in India, the persecution still exists. The state might say “India now has a system of recognising third sex people” – and I explain that is not relevant to most people with a trans identity. I have to explain that the Hijras women do not have the same way of identifying their gender, as trans men identify theirs.
We use them all the time and you can tell the YPP are a good piece of legal framing because they are still sound today.
What about the trans-community?
I think the trans-community was incredibly pleased to be included. This was the first time we had been fully and properly included. I do not know how Mauro felt about the intersex community. One of the problems in Europe is that intersex campaign groups are actually parent-led. What they are looking for is something very different from what an intersex person might themselves want when they become an adult. So as we were framing the principles those issues had to be addressed and thought about. Those five days were really hard work. We had to engage our brains at a higher level than we do normally. It was exhausting but a privilege.
The language is very particular, there is no mentioning of trans. Why?
The use of the language is very deliberate, because the principles are about universal values – rights that every person has a right to.
It was important that what we created was absolutely universal; human rights for people whose gender identity was variant in some way, shape or form or whose sexual orientation did not follow a heteronormative pathway. And that we wanted the principles to be an opening of the debate rather than a closing down of the debate. So they had to be open, they had to envisage a legal framework in the world in which people had true liberties and choices to develop autonomously as individuals those aspects of their identity which was best for them; to make personal and political choices that were different from the normative values that were otherwise expected of them.
Was the opening of the debate then achieved in your view?
Absolutely. If the principles had not been written, we would not have reached the points that we did in 2008, in 2009 and 2011 when the UN was discussing these issues. I have absolutely no doubt that we opened the debate within the UN and that the principles placed the notion of sexual orientation and gender identity rights firmly on the human rights agenda across the world.
So has the recently decided mandate of an UN expert on SOGI also indirectly to do with the YYP?
All of this is part of the process. Prior to the principles we had all sorts of documents, there was a lot of debate and commentary, but no framework, nobody had sat down and pulled it together.
Critics of the YYP have raised that while the principles interpret binding international legal standards, the document itself is not legally binding and still only very few States comply. How do you react to this criticism?
Of course, they are correct. The YPP would never be binding unless adopted by an organisation like the UN. It was always going to be the case that the UN, the Council of Europe etc. would create their own documents that elaborate the issues within their own organisational structures. In terms of states, nation states do not do a lot of things. For example, in Europe we have so many directives that states do not abide by or states deliberately misinterpret or states narrowly interpret. But when local activists organize themselves, start taking cases to court, the fact that these issues and the recommendation have been made, mean that people will ultimately win their cases against their state.
Look at Ireland. To me as an activist legal matters can always be improved upon, but the fact that LGBT rights have got so far, in a state that was previously controlled by the values of the Roman Catholic church, is astonishing. You have to look at those issues in their wider frameworks, obtaining change is a progressive drip-drip-drip. It is going to be case by case, legislative document by legislative document. Perhaps that's the right way to do it because otherwise there would be so much resistance. Instead, as seen in Ireland in the ‘same-sex marriage’ referendum, activists found there was a huge fertile background support. That only comes because of the history that has been built behind it.
Mauro Cabral discussed the need of an intersex version of the principles. What is your opinion on this?
The principles acknowledge the rights of individuals to autonomy in terms of the development of their life plans, their personal way of performing their life, the relationships that they form and the families that they create.
In my personal view Intersex issues need to be addressed in a different forum, not in the YPP. Any activism by people who are intersex has to acknowledge the complexity that comes with the parental role when a child is born. Starting to respect each individual person’s or child’s right to own the form their body takes, is where the intersex debate needs to go. Let’s face it, over 60% of girls have irrational thoughts about their body - we have to change that for a start. I think any proposals for special principles concerning intersex people probably should be framed in a recognition of universality about bodily autonomy.
I am of the view that unless genital surgery is essentially life-saving for an intersex child, it shouldn't ever be considered until that child is old enough to participate in the decision-making around what happens to their body. Because unless it is universally framed we will miss out people's difference.
We have to bring the question of bodily rights properly into education in schools, we failed to do that to the moment, but we are beginning to see change here in the UK, for example new unisex toilets, which are built to recognise a child’s right to bodily privacy, are now being built in some schools.
Do you think a trans version of YYP would make sense or an update such as YYP2?
No, I think it needs a body version. It needs a proper declaration to rights of privacy, autonomy, and it’s aim should be about giving each person the ability to feel good ... all these things about their body. I think we have a long way to go in that debate - it really is the next one we need to do.
Thank you for the interview.
This interivew is part of our Focus on human rights for LGBTI people: Ten years of the Yogyakarta Principles.
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