Report of the Conference
The desire to talk about the ‘best interest of the child’ – in the context of age and maturity and the
preferences for alternative, developmental states and emphasis on autonomy – alternatively, instead
of removing ‘best interest’, it could be useful to be more explicit about what these interests are. It was
suggested that normative language, such as ‘harmful practices’ instead of torture framings should be
used. Supplementary principles could be expanded to include harm caused, and in particular draw
attention to the distinction between consent and informed consent. The issue of legal language and
approach to categorising, conflation and confusion of gender identity and sex characteristics – in which
proof is often based on ‘biological characteristics’ must be addressed in future developments.
There is the need for the Yogyakarta Principles to introduce better conceptual clarity on the subject of
sex characteristics and intersex. The current definitions in relation to bodily diversity, intersex and sex
characteristics are not clear, which need to address through the lens and aspects of health and bodily
autonomy plus diversity. The issues related to female genital mutilation (FGM) and approaches taken by
human rights advocates provides some important lessons for intersex advocacy.
There is a need for better emphasis on views of the child in the Yogyakarta Principles. Clarity is needed
to identify the impact of third categories on birth certificates – including both positive and negative
consequences. Although there is some resistance to issues related to bodily autonomy, it is important to
refer to the ‘self-determination’ of intersex people.
In the area of gender identity, explicit discussion on gender expression is absent in the Yogyakarta
Principles. There is also no reference to cultural identity, and the relationship between SO, GI and GE is
not clear.
Although the Yogyakarta Principles uses non-binary language, there is a lack of information on definitions
of sex and gender, and gender identity and right to family are not adequately addressed. Gender
expression and cultural participation as well as freedom of religion and their relationships are not included.
Gender norms and social gender are not distinguished in the Principles, which must be addressed in any
future revisions or updates.
It is also important for the Principles to recognise the intersectionality of rights and approaches which
may have positive implications for reinforcing its substantive contents. By applying an intersectional
perspective, the Principles needs to address cross-cutting issues such as issues surrounding genderbased violence; children’s rights; women’s rights etc. It should also reflect the nuances of each human
rights instrument. The primacy of the heteronormative family as the ideal may be challenged by counternarratives of persons from diverse contexts such as those in migration, in armed conflict scenarios, in
natural disasters who may be living in different family arrangements.
While Principles 21, 24 and 26 recognise the right of LGBTI people to faith, to form family and to
participate in cultural rights, the right to protection against violence based on religious belief and/or
cultures and/or patriarchal family setting, is absent or non-existence. It is therefore necessary to review
the existing Principles to ensure they explicitly provide for protection of LGBTI people from violence
propagated by misguided religious belief and/or patriarchal cultures and family settings. Although
Principle 21 is open and comprehensively embraces the rights of LGBTI to hold freedom of thought,
conscience and religion it does not however cover the imposition of religious values on LGBTI individuals.
Similarly, Principle 21 lacks clarity on how religions and related practices should treat LGBTI people. There
is no critical view on how religion and religious practices perpetuate the gender-binary, patriarchy and
heteronormativity. Principle 24 touches on the right to form a family but again does not encapsulate the
family duty to protect and not to harm LGBTI people. Given the evolving discourses around non-state
actors as human rights duty-bearers, the Principles should consider how the family should be obligated
to protect and promote rights the of LGBTI people. There also needs to be further clarity on issues related
to family and adoption.
It is important to add a provision on intrusive surgery and bodily harm. To consider expanding Principle
5 and 6 to encapsulate the issue of participatory rights for children and protection from bodily harm/
intrusive surgery. In this case the right to participation under the CRC may be used to interpret in
conjunction with the application of the best interest of the child principle. Principle 26 talks about the right
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