MurrayBlackburnMackenzie: Greens’ commitment to enshrining Yogyakarta principles needs scrutiny

Launched last week, the Scottish Green Party manifesto sets out a commitment to “enshrining the Yogyakarta human rights principles into Scots law”, as part of its LGBT+ equalities agenda.  

Developed in 2006 by a group of international human rights experts and NGOs, led by rapporteur and Irish lawyer Professor Michael O’Flaherty, and expanded further in 2017, the Yogyakarta Principles cover a range of rights related to sexual orientation and gender identity. On the latter, at their core, is a belief that self-declared gender identity, defined as “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth”, should override sex as a basis for policy and law. 

Principle 31, on legal recognition, goes further. The opening section states that “Everyone has the right to legal recognition without reference to, or requiring assignment or disclosure of, sex, gender, sexual orientation, gender identity, gender expression or sex characteristics”, and then calls to “end to the registration of the sex and gender of the person in identity documents such as birth certificates, identification cards, passports and driver licences, and as part of their legal personality”. 

The elimination of sex as part of a person’s legal personality carries significant implications, particularly for women. In practice it would remove the ability to challenge sex discrimination: equal pay claims require the identification of a comparator who is legally of the opposite sex. It would jeopardise the operation of safeguards which require the ability to differentiate between people based on their being recognised in law as having different sexes, for example in jobs involving providing counselling or intimate care, in services such as single sex hospital wards, and in activities such as sports. 

Indeed, in calling for both sex and gender to be removed from having any legal recognition, Principle 31 appears to look forward to a world in which there is no basis in law for distinguishing between women and men, however defined. This is a startlingly radical proposition, but a straightforward reading of the words.

While sex or gender continues to be registered by countries, Principle 31 makes interim proposals focussed on the underlying premise that a person’s self-declared gender identity should supersede their sex in all circumstances where this is taken into account. There is no recognition of the policy implications for any other protected characteristics.

In a recent interview in The Critic, a co-author of the original principles Professor Robert Wintemute of King’s College London expressed regret at how the principles had been developed, describing a process which took place without consideration for how women’s rights would be affected. He has said he “failed to consider” what the original proposals for prioritising gender identity over sex would mean for female-only spaces, remarking that “A key factor in my change of opinion has been listening to women.”

In the original Principle 3 (the forerunner to what is now Principle 31), Wintemute now believes he allowed references to ‘self-defined gender identity’ and ‘changes to identity documents [being] recognised in all contexts’ to be included with too little challenge: “If I had thought through the implications of Principle 3, I would have had to consider the potential for conflict with women’s rights, but I didn’t.” He was not alone: “Women’s rights weren’t raised”, he told his interviewer, even though the human rights experts at the meeting included former UN special rapporteurs and committee members.   

At first glance, the principles may appear relatively obscure. They have no official standing in international law, have not been adopted in any treaty, create no obligations on governments, nor have they been relied on in the multiple rulings in this area by the European Court of Human Rights. Yet their core tenets have influenced political debate and acted as a lever for reform on legal gender recognition, via their framing as ‘international best practice’. LGBT researcher Ryan Thoreson describes how “within a matter of two years, the Principles [were] widely cited by state and non-state actors alike, despite the fact that they were formulated privately by a cadre of experts and not by any official or quasi-representative body”, which he ascribes in part to the “strategic, inventive ways that activists have framed and deployed them from multiple points of entry in the global system”.  

In Scotland, the principles gained a foothold in the 2017 and 2019 Scottish government consultations on gender recognition reform. The 2017 consultation stated that “the view of the Scottish Government is that the 2004 Act requirements are unnecessarily intrusive and do not reflect the best practice now embodied in the Yogyakarta Principles…”. This position was reiterated by several organisational responses to the 2017 consultation, including UNISON, the STUC, the Children’s and Young People’s Commissioner, and the Equality and Human Rights Commission. The 2019 consultation further cited the principles as a “reason for change”.  

Despite this institutional traction, there is little evidence to suggest wider public awareness of what the principles represent, or more importantly, what they would mean in practice. The manifesto does not include any discussion of their specific content. Yet this is a serious commitment, to enshrine a set of far-reaching principles into law, to which Green MSPs may yet point in constructing any coalition deal. 

With women’s rights squarely on the political agenda in the run-up to the Holyrood election, policies that many women will find unsettling are becoming less likely to pass under the radar than they have before. Professor Wintemute’s reflections on his involvement with the Yogyakarta process, and its limitations, are likely to be recalled, should the Principles’ existence appear to be influential in any post-election policy development.