India: Application of Yogyakarta Principles under national law a major step for transgender rights

17.04.2014

In a landmark judgment the Indian Supreme Court has held that the 'Yogyakarta Principles on the Application of International Law in Relation to Issues of Sexual Orientation and Gender Identity’ should be applied as a matter of national law.

(Geneva) – In a landmark judgment the Supreme Court of India has held that transgender persons are entitled to be recognised as a ‘third gender’ rather than being forced to identify as either male or female. The Court also held that discrimination based on gender identity violates constitutionally guaranteed rights to equality, freedom of expression, privacy, autonomy and dignity.

Significantly, in reaching its decision, the Court stated that the ‘Yogyakarta Principles on the Application of International Law in Relation to Issues of Sexual Orientation and Gender Identity’ should be applied as a part of Indian law.

‘Equality and non-discrimination on the ground of gender identity or expression is increasing and gaining acceptance in international law and, therefore, should be applied in India as well,’ the Court said.

‘Due to the absence of suitable legislation protecting the rights of the members of the transgender community…International Conventions, including the Yogyakarta Principles, which we have found not inconsistent with the various fundamental rights guaranteed under the Indian Constitution, must be recognized and followed,’ the judges said.

The Yogyakarta Principles were developed by a coalition coordinated by the International Service for Human Rights and the International Commission of Jurists and were formally adopted by a panel of leading international law experts in November 2006. They provide authoritative guidance on the human rights of gay, lesbian, bisexual, transgender and intersex persons and the obligations of States to promote and protect these rights, ensure full equality and address discrimination.

‘ISHR welcomes the decision of the Supreme Court of India affirming the right to non-discrimination on the grounds of gender identity and recognising the relevance and applicability of international human rights norms, such as the Yogyakarta Principles,’ said ISHR Director Phil Lynch.

‘The right to non-discrimination on the grounds of sexual orientation and gender identity is both fundamental and universal and we call on all States to comply with the Yogyakarta Principles in developing and implementing laws, policies and practices in this regard,’ Mr Lynch said.

‘In the case of India, in particular, we call on the Government to act consistently with the Yogyakarta Principles by repealing section 377 of the Indian Penal Code, which effectively criminalises same-sex relations. We also call on India to comply with the spirit and intent of this judgment by supporting efforts at the UN Human Rights Council to adopt a resolution condemning violence and discrimination on the grounds of sexual orientation and gender identity.’

Contact: Phil Lynch, Director of the International Service for Human Rights, on p.lynch@ishr.ch or + 41 76 708 4738.

Category:

Region
  • Asia
Topic
  • LGBT rights
Mechanism
  • UN Human Rights Council
Country
  • India