Report of the Conference Workstation 5: Legal protection Facilitator Henry Koh, Fortify Rights Rapporteur Ed Santow, NHRI Australia Question 1: Gaps in in the Yogyakarta Principles in relation to legal protection • Legal enforceability and recognition of the Yogyakarta Principles by courts, UPR process, etc. • Increasing accountability of stakeholders is not fully covered • Monitoring compliance by states with the Principles – Indexing jurisdictions need to be incorporated • Establishing a more explicit link to domestic law – identify gaps in domestic law and follow through in areas where there is lack of consistency • Could the Principles be a step towards a convention – intermediate steps could include a declaration? • There is no linking to SDGs (Note: The Principles predate the SDGs) • Normative protection – absence of a specific SOGIESC/LGBTI rights treaty (in the long term) • Addressing the issue of states selectively complying with the Principles • Absence of the positive freedom to engage in private/ consensual adult sexual activity • Homophobia is still pervasive and presents a barrier to progress • There is the need to develop a comprehensive roadmap towards a convention • The groups identified three themes in terms of the gaps of legal protection in the Principles: –– Procedural gaps: In particular, concern was expressed about the lack of legal enforceability of the Principles. A potential mitigation of this problem would be to develop a sophisticated means of monitoring states’ compliance with the Principles, and reporting and even indexing states’ relative success in complying with the Principle. –– Substantive gaps: Certain LGBTI groups were not fully covered by the Principles – e.g. LGBTI youth, intersex people and asylum seekers. Certain issues are not fully covered by the Principles – e.g. freedom of association (especially in the context of requirements on CSOs to register with the government and restrictions on receiving foreign funding), as well as freedom of expression. There was some discussion about the Principles providing negative legal protection – a suggestion was to include a positive freedom to engage in private, consensual adult sexual activity. Moreover, intersex, sex characteristics, intersectional and compound discrimination, freedom of association, registration, access to foreign funding, Freedom of expression and interest, LGBTI youth, asylum seekers are not covered –– Performance gaps: between how the law as it appears and how it applies in reality. • It was noted that the Principles presents a pragmatic response to the absence of a dedicated LGBTI/SOGIESC international human rights convention. It was suggested that the Principles could provide a more explicit pathway to the end goal of a convention. 33