Making Room for Sexual Orientation and Gender Identity in International Human Rights Law: An Introduction to the Yogyakarta Principles

This Note evaluates the Yogyakarta Principles’ legal and inspirational capacity to drive the development of human rights law. Part I describes the most common patterns of violence and discrimination suffered around the world on account of sexual orientation and gender identity, and the process by which the Principles’ drafters sought to apply principles of international law to stem these outrages by developing a restatement of international human rights law that would leave no doubt as to their illegality. Part II assesses the Principles’ claim to accuracy as a restatement of existing, binding international law. It shows that the most basic of the principles-those dealing with nondiscrimination and fundamental civil and political rights-draw broadly and accurately from general principles of non-discrimination, customary international law, and jus cogens. Part III addresses the positive and negative implications of the Yogyakarta Principles’ imperfections as a restatement of international law. I argue that on balance the Principles have been very successful in becoming a standard-setting document and the inspiration for a variety of efforts to combat sexual orientation and gender identity discrimination in international law, government policy, and domestic courts.