Monday 26 March 2007

Victory in Yogyakarta

People like me are Human.

Yes, I know that may sound obvious to many (and a contradiction to a few unlikely to read this blog), but that is what was decided at Yogyakarta, Indonesia this week.

I will quote from the Introduction to the Statement of Principles:
The international system has seen great strides toward gender equality and protections against violence in society, community and in the family. In addition, key human rights mechanisms of the United Nations have affirmed States’ obligation to ensure effective protection of all persons from discrimination based on sexual orientation or gender identity. However, the international response to human rights violations based on sexual orientation and gender identity has been fragmented and inconsistent.

To address these deficiencies a consistent understanding of the comprehensive regime of international human rights law and its application to issues of sexual orientation and gender identity is necessary. It is critical to collate and clarify State obligations under existing international human rights law, in order to promote and protect all human rights for all persons on the basis of equality and without discrimination.

The International Commission of Jurists and the International Service for Human Rights, on behalf of a coalition of human rights organisations, have undertaken a project to develop a set of international legal principles on the application of international law to human rights violations based on sexual orientation and gender identity to bring greater clarity and coherence to States’ human rights obligations.

A distinguished group of human rights experts has drafted, developed, discussed and refined these Principles. Following an experts’ meeting held at Gadjah Mada University in Yogyakarta, Indonesia from 6 to 9 November 2006, 29 distinguished experts from 25 countries with diverse backgrounds and expertise relevant to issues of human rights law unanimously adopted the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity.
This is not "new law". It is a clarification by legal jurists of States' existing obligations under Human Rights conventions that have already been signed and are the Law of the Land.

We are Human. Human Rights apply to us even though we are Transsexual or Intersexed. (Or Gay or Lesbian for that matter).
The 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. They also recognise that States may incur additional obligations as human rights law continues to evolve.

The Yogyakarta 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 fulfil that precious birthright.
At least one Australian legal case currently being heard will be affected by this.

And in view of my passport woes, I'll quote Principle 22:
Everyone lawfully within a State has the right to freedom of movement and residence within the borders of the State, regardless of sexual orientation or gender identity. Sexual 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.

States shall:
a) Take all necessary legislative, administrative and other measures to ensure that the right to freedom of movement and residence is guaranteed regardless of sexual orientation or gender identity.
Later, it explains
Gender identity is understood 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.
This directly makes the odious section 89 in the Explanatory Notes to the Australian Passports Determination an explicit violation of the Law of the Land, and therefore arguably void and a legal nullity, not being within the powers of the Minister to decide. In any event, Australia is now obligated to take all necessary measures to remove its provisions.

I am now, under International Human Rights Law, officially Human. And yesterday, I wasn't.


Anonymous said...

Are you in a position to say more about the pending case that might be affected?

In many cases, it would be even better to erase gender/sex from records. For example, even though it would inconvenience some small minds, do universities need to keep records of sex/gender?

Is it necessary to display this information on a passport? What purpose does its presence on a passport serve?

Zoe Brain said...

1. Court Case: No I'm not, as I've been in contact with one of the principals, and have been asked not to say anything.

2. Uni Records: No it wouldn't - how else would we be able to do all of the "equal opportunity" stuff? Actually, I'm in favour of dropping all discrimination, and not recording race, creed, colour, or sex, but I don't think it's practicable, and not having this data may conceal instututionalised bias.

3. Passports: I think it is - if it's accurate - if only so the right gendered people are present for body searches etc. If it's inaccurate, it's counter-productive,

We live in a (mainly) bi-gendered world, and systems should be set up for that as the default. They must also be flexible enough so that they can deal with the 2% that doesn't fit.
But as I still have problems registering for comments at sites that insist on me putting in a valid US state and Zipcode, and do not consider that anyone from outside the US might wabt to leave a comment, it's a common problem, and not just in this area.

karinangelika said...

I wonder how the lawgivers of western Australia will view this? Under our state laws here, people born with transsexualism or other intersex conditions, and people who call themselves "transgender," and people who have had surgery but cannot have their birth certificate corrected due to being married, are essentially and practically speaking subhuman, according to one Victorian lawyer's analysis of the situation.