In early November 2006, a group of international legal experts descended on Gadjah Mada University in Yogyakarta, Indonesia. There, over the course of four days, they drafted and developed a set of statements aimed at building a bridge between the timeless concept of human rights and the recent notions of “sexual orientation” and “gender identity” (SOGI). On March 26, 2007, the fruit of their labors was revealed at the United Nations Human Rights Council in Geneva: The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity.
The bulk of the document consisted of twenty-nine principles, covering everything from equality to education, rights to religion, and health to housing. In addition, sixteen recommendations were put forward, the first being that the principles should be endorsed and promoted by the United Nations High Commissioner for Human Rights. (Among the text’s twenty-nine signatories, coming from twenty-five countries, were no less than eight UN Special Rapporteurs.)
Since their launch ten years ago, the Yogyakarta Principles have gained a near-mythical status. They have throbbed away in the background, shaping the terms of legal debate more by association and insinuation than by formal adoption, with the ideas therein gradually becoming the loudest voice in the conversation. At the public policy level, there are many, many good reasons to be against SOGI-related laws, but this essay looks at the concepts themselves: how do law and SOGI relate to one another? To this end, let us first separate the SO from the GI.
Sexual Orientation vs. Gender Identity
It is becoming more and more clear that the so-called LGBT movement is less a natural union of fellow travellers and more a communion of the contradictory. To see the fault line running between the LGB (sexual orientation) and the T (gender identity), let us employ the Yogyakarta Principles’ own definitions.
Sexual orientation, we are told, refers to “each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.” Here, gender is not a synonym of sex, as is evident from the use of the phrase “more than one” rather than “both.” In turn, gender identity is 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, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.
It takes a lot of lawyers to say so much without saying anything at all. If our gender identity is a state of mind defined without reference to our sex (i.e., our body), then our gender identity is “the identity of our gender.” But gender itself is not defined anywhere within the Yogyakarta Principles. We are told what gender is not—sex—but not what it is.
Here’s the fault line: if sexual orientation is defined in terms of gender, and if gender is not defined in terms of sex, then sex has been extracted from sexual orientation. But sexual orientation is entirely dependent on sex, because it is entirely dependent on sexual difference—no two people can know they are the same (sex) as each other without first knowing they are not different (sexes) from each other.
Rights and Identity
However, sexual orientation and gender identity are not the only poles that repel each other. No, gender identity also repels the very notion of human rights. As understood by the esteemed signatories of the revered document, a person’s fundamental identity exists in the form of a state of mind, which is deemed superior to his or her body. Unsurprisingly, this has a profound effect on the link between rights and identity.
Properly understood, human rights are grounded in the dignity owed to each person in virtue of his or her being made in the image and likeness of God. In short, the rights owed to me are those owed to me-as-me. As an example, to refuse me a British passport would be against my dignity precisely because I am British, whereas to refuse me an Italian passport would not be against my dignity precisely because I am not Italian. We cannot, under the aegis of the words “human” and “rights,” demand legal access to identities and rights that are not ours. There simply is no such person as “somebody who was born in Britain who was born in Italy.”
In contrast, the Yogyakarta Principles would have us believe our rights arrive in two stages—first, we decide who we want to be, and then we claim the rights owed to our chosen identity. This is like saying I get to choose to be Italian, with my choice then entitling me to an Italian passport. Thus, a legal protection of gender identity amounts to a right to choose who we are.
The result of separating legal rights from natural identity, then, is rights uncoupled from their natural ground. This makes the Yogyakarta Principles an exercise in applying SOGI to human rights law, rather than an exercise in applying human rights law to SOGI.
Gender Identity and Law
But an even deeper problem can be seen when we recognize that to detach rights from embodiedness is to detach law itself from embodiedness. So, we have a third warring couple on our hands: gender identity and law. We can illustrate the tension between them in two ways. The first is by thinking about the relationship between being and doing.
Ordinarily, we decide what a person can and cannot legally do by taking two things into account: the who (being) and the what (doing). If I am the who, and if holding a passport is the what, then the passport I can validly “do” is determined by my being British. Another, more relevant example: accessing the female restroom is something I cannot validly do precisely because I cannot be the kind of person who qualifies to do that thing.
In eliminating the natural limit to who I can and cannot legally be, SOGI laws eliminate the natural limit to what I can and cannot legally do. If my natural state of being means it is unlawful for me to do X, then I can circumvent the law by choosing a legal identity for which doing X is not unlawful.
New Laws for New People
A comprehensive view of the impasse between gender identity and law can be seen by contrasting parts of law with the whole of law. Here, an analogy can serve us well.
Imagine a dining room that contains a table, some chairs, and a painting on the wall. A single light bulb illuminates the room. Removing one of the chairs and replacing it with a different one has little or no effect on anything else in the room. The same is true of replacing the painting. But what about the light bulb? If we replace it with one that gives off, say, blue light, the change affects the color of everything in the room. Why? Because the light that falls on the chair is the same as the light that falls on the table and on the painting. Light binds together everything in the room.
Now, if the room represents man-made law, then the objects in the room are areas of law. Perhaps the chair represents food and drink laws and the painting stands for tax laws. Any one area can be changed without greatly affecting the whole of law. What, then, is the legal equivalent of light? What binds each law to all other laws? The answer can only be the body. Why? Because all laws govern persons, and all persons are embodied. (Granted, tax laws are not immediately related to our embodiedness in the way that food and drink laws are, but this does not alter the fact that laws governing persons are laws governing bodies.) To unscrew the body from law and replace it with the mind is to change the legal understanding of what it means to be a person, thereby changing not one law, or many laws, but law per se. SOGI triggers the creation of new laws for new people.
Of course, this does not mean SOGI requires the state to raise (or lower) tax levels, but it does mean the state no longer considers tax to be something paid by people who are one of two sexes. De-sexed law means tax is legally understood to be something paid by people who are one (or more) of a potentially infinite number of gender identities. It follows that any area of law directly related to sexual difference must fall away, hence the focus on restrooms, etc.
Ideas have consequences. Lest anybody suppose the ideas laid out in the Yogyakarta Principles will quietly take their leave from the legal stage, it is worth noting that the Specialist Advisor to the UK Parliament’s recent transgender equality report, the current Director of the EU Agency for Fundamental Rights, and the United Nations’ first ever “SOGI Czar” were all in Yogyakarta ten years ago, trying to build a bridge.
Reason tells us the bridge was and is one that cannot be built, as only one of its ends can exist at any one time: if we want valid law, then we cannot have SOGI laws; we can only have SOGI “laws” alongside lawlessness disguised as law. When the state insists on governing us only in terms of who we think we are, surely the proper interpretation of such an insistence is that the state has reneged on the very reason for its existence: to govern us-as-us; to govern us as male and female.