The Yogyakarta Principles: A Legal Discourse on Rights of the LGBTI Community

Prerna Mitra
Associate at AshiLegal, Bangalore, Karnataka, India
Kunwar Abhijeet
Advocate of High Court, New Delhi, India

Volume III, Issue IV, 2020

Mankind is well-familiar with the element of discrimination- where man hounds for factors upon which he can discriminate others such as race, place of birth, place of residence, economic affluence, and the age old factor of discrimination- sex and gender. The society was traditionally understood to have been divided into a “binary gender system”, where women were always perceived as the gender inferior to men, but now the term “sexual orientation and gender identity” is not limited to male and female. Men have come to discover varied understanding of sexuality and introduced the concept of lesbian, gay, bisexual, transgender, and intersex (LGBTI). The LGBTI Community has fallen victim to unfathomable discrimination meted out against them because they do not fall within the confines of the “binary gender system”. Homosexuality is not just the epitome of blasphemy in countries but is a criminalized act under their municipal laws. It is recently that the LGBTI Community raised their voice against the injustice that has been inflicted upon them for decades. With a sea of protests sweeping over the State authorities, the act of homosexuality was decriminalized in a number of countries now, but the Islamic countries all across the globe continue to impose death penalty on consensual same-sex sexual acts. The paradigm shift was brought about in Indonesia’s Gadjah Mada University, Yogyakarta, in 2006, where the Yogyakarta Principles were developed at a meeting of the International Commission of Jurists and human rights experts from around the world. The Yogyakarta Principles are a set of Principles that have been specifically devised to provide people of differed sexual orientation and gender identity with all the basic human rights that every individual is entitled to despite their sexuality. The Yogyakarta Principles have borrowed heavily from the body of international human rights law but has made it explicit that people of varied sexuality are entitled to these rights despite all odds. India too has relied on these principles as an international authority in granting rights to the LGBTI Community through its recent judgments. The aim of this article is to analyze the extent to which the Yogyakarta Principles are an embodiment of the International Human Rights Law; to examine if India requires a separate body of law governing the rights of the LGBTI Community or their rights can be read into the Indian Constitutional provisions and other statutory laws with certain amendments being made to the latter to suit the needs of the Community, as they too are human beings and not aliens.

Keywords- Yogyakarta Principles, sexual orientation and gender identity, sexuality, hetero-normative individuals, binary gender system.