ECHR stated, in the subsequent case of Modinos vs. Cyprus, that a ‘consistent policy’ of not bringing prosecutions under the law was no substitute for full repeal. 32 The ECHR has also found violations of the European Convention rights due to discrimination on the basis of sexual orientation and/or gender identity in a range of situations including: • • • • • • recruitment to the military; 33 capacity to change legal identities and associated papers to match their post-operative genders; 34 access to medical services (including sex-reassignment surgery); 35 denial of child custody; 36 succession in tenancy; 37 different ages of consent for sexual conduct. 38 Jurisprudence from other regional human rights mechanisms is less developed. In the Americas, the Organisation of American States (OAS) has recognized violations based on sexual orientation and gender identity in several resolutions that express concern and 'condemn acts of violence and related human rights violations committed against individuals because of their sexual orientation and gender identity'. 39 Box 1: The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (2006) 40 In 2006 a distinguished group of eminent international human rights experts met in Yogyakarta Indonesia to consider the application of existing international human rights law to sexual orientation and gender identity. Having considered relevant international human rights law instruments, as well as their interpretation by the various international, regional and domestic bodies and by academics and practitioners, the Expert Group adopted 29 ‘Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity’, (the Yogyakarta Principles). 41 The Yogyakarta Principles clarify the application of existing human rights standards, and in addition, recommend to States a series of activities that they should undertake to ensure respect for, and the enjoyment of human rights by, persons of diverse sexual orientation and gender identity. With regard to the rights to equality and non-discrimination, Principle 2 of the Yogyakarta Principles states as follows: “Everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity. Everyone is entitled to equality before the law and 32 Modinos v. Cyprus A 259 (1993); (1993) 16 EHRR 485. 33 Smith and Grady vs. United Kingdom 1999-VI 45; (1999) 29 EHRR 493, Lustig-Prean and Beckett vs. United Kingdom (1999) 29 EHRR 548. 34 Goodwin vs. United Kingdom (2002) 35 EHRR 18. I. vs. United Kingdom (2003) 36 EHRR 53. 35 Van Kuck v. Germany 2003-VII 1; (2003) 37 EHRR 51. L. v. Lithuania Application No. 27527/03, Judgment of 11 September 2007. 36 Salgueiro da Silva Mouta v. Portugal 1999-IX 309; (1999) 31 EHRR 1055. 37 Karner v.Austria, (2003) 36 EHRR 53. Kozak v. Poland [2010] ECHR 280. 38 L. and V.. v.Austria 2003-I 29; (2003) 36 EHRR 55. S.L. v. Austria 2003-I 71; (2003) 37 EHRR 3.9. 39 AG/RES. 2435 (XXXVIII-O/08) and AG/RES. 2435 (XXXVIII-O/08). 40 The Yogyakarta Principles. Available at: www.yogyakartaprinciples.org/ Last accessed 14 June 2010. 41 The Yogyakarta Principles, Premambular paragraph 7. Available at: www.yogyakartaprinciples.org/ ACJ Report: Human Rights, Sexual Orientation and Gender Identity 16