A murky history shrouds the erasure of biological sex
The majority-Muslim city of Yogyakarta, on the humid southern coast of Java, is rarely associated with progressive politics. While being gay is not illegal there, it is certainly not tolerated: the Indonesian island has a history of shunting homosexual men into a third category of gender called waria, the kind of homophobic compromise that has been repeated in homophobic societies across the world. And yet, for a brief moment in 2006, Yogyakarta became the epicentre of the global effort to remove biological sex as a category in law.
At the start of November, an assortment of 29 high-profile UN representatives, human rights lawyers, academics and LGBTQ lobbyists flocked to the sultanate city to attend a conference at the Gadjah Mada university. There, over four days, they hunkered down to craft a document they would call the Yogyakarta Principles.
Having tried and failed to convince conservative countries to include protections based on sexual orientation and gender identity in UN resolutions, the drafters, led by Irish ex-priest Michael O’Flaherty, sought to demonstrate how any country that had signed up to the Universal Declaration of Human Rights was obliged to grant them anyway. Their ambitious interpretation claimed “the right to recognition as a person before the law” automatically included the right to legal gender self-ID, while “the right to health” obliged states to “facilitate access by those seeking body modifications related to gender reassignment”.
Pick a country and evidence abounds; from legal self-ID, to hate speech laws, to conversion therapy bans, the drafters have had more success than they surely could have hoped for.
The Principles were not legally binding, nor did they cite any legislation. Indeed, according to one of its signatories, O’Flaherty insisted that his fellow drafters ignore the legal reality. The Yogyakarta Principles, then, were simply a wish list. Perhaps it was hoped that the heft of the reputations of the drafters would be enough to cajole NGOs, legal professionals and governments into taking them seriously. If so, they seem to have been right.
Sonia Onufer Corrêa, a Brazilian activist and one of the attendees, later admitted that Indonesia was only chosen because the drafters wanted a Muslim country, so as to avoid the impression that the edicts came from the decadent West. It bears noting that the Sultan of Yogyakarta himself never adopted the Principles for his own city; in fact, the situation for LGBT people there had become so untenable by the time the Principles came up for review in 2017 that they had to find a friendlier host city, Bangkok.
Never mind. The location was always just a smokescreen. The real unveiling of the Yogyakarta Principles came in 2007, when they were officially launched in New York and Geneva. It was undoubtedly a triumph. While O’Flaherty and his crew were unable to convince conservative African and Islamic countries to adopt the Principles, Western nations were more than eager to get on board. Pick a country and evidence abounds; from legal self-ID, to hate speech laws, to conversion therapy bans, the drafters have had more success than they surely could have hoped for.
At the heart of their campaign was a raft of evidence alleging to show the use of torture against gay, lesbian and trans-identifying people. Such abuse had been reported as early as 2001 by Amnesty International, who described the brutal violence suffered by the travestis of Central and South America at the hands of police and the johns who paid them (or not) for sex.
According to Article 5 of the UN’s Declaration of Human Rights, “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. The Yogyakarta drafters interpreted this to cover conversion therapies based not just on sexual orientation or sex characteristics, but also gender identity and even gender expression. Expanding on their rather short interpretation, one of the key organisations behind the Principles, the International Commission of Jurists (ICJ), helpfully provided a more detailed technical guide for legal professionals in 2009.
There was one problem, however. “International human rights systems,” warned the ICJ, “have not yet dealt with an individual petition or communication specifically relating to issues of sexual orientation and gender identity in relation with the prohibition of torture.” In other words, there wasn’t sufficient evidence.
But a group of lawyers in the US, led by the National Council for Lesbian Rights (NCLR) in collaboration with the Trevor Project, was working on it. Since 2009, a movement to expose the horrific practice of conversion therapy against gays and lesbians (though not trans-identifying people) had been underway in America. And in 2013, the NCLR began planning a campaign to convince lawmakers that conversion therapy constituted a breach of the Convention against torture, to which the US was a signatory.
With the support of the UN’s special rapporteur on torture, who had just issued a report on ill-treatment in healthcare settings that included “reparative therapies” carried out on LGBT people, they sought an audience with the bodies that oversee the UN Convention Against Torture (UNCAT). These were made up of committees of experts in torture from around the world, one of whom was Victor Madrigal-Borloz.
But as the 16 years since that fateful meeting in Yogyakarta have demonstrated, making a crime out of conventional therapy for gender-distressed teens has hardly been a victory.
At the time, Madrigal-Borloz was secretary-general of a Danish NGO called the International Rehabilitation Council for Torture Victims. According to an anonymous source, once in the job, he began planning an expensive multi-day showcase event in Mexico City which plunged the NGO into an extremely precarious financial situation. The situation was exacerbated by the fact that the NGO was not producing results, and funders were pulling out.
An FOI request by journalist Dorte Toft later found that the Danish development ministry, DANIDA, ordered an external investigation that concluded IRCT’s travel budget didn’t make sense based on the activities of the organisation. They also said the secretary-general’s salary was too high and that he had too much power over budget decisions. Overall, they concluded, the management of IRCT — financial and otherwise — was a disaster. By this point, however, Madrigal-Borloz had skipped off to this next appointment as the UN’s “independent expert”.
In November 2014, around the same time that the IRCT was haemorrhaging money intended for torture victims, the NCLR had been granted an audience with Convention Against Torture treaty experts in Geneva. They brought along a star witness, who tearfully spoke of the horrific electric shocks and beatings that his therapists and parents had subjected him to in an effort to turn him straight. His name was Samuel Brinton, and he would later become known as the non-binary Biden staffer caught stealing women’s suitcases from airports.
According to one of the lawyers who brought Brinton to Geneva, his testimony elicited gasps from the UN panel. How could this still be going on in 2014? After all, state-level efforts were already underway to outlaw conversion therapy. And media reports from the time suggest that existing bans covered “ex-gay” practices familiar to most people: the religious ministries and pseudotherapy sessions that sought to turn homosexuals straight.
But this wasn’t just about gay conversion therapy. “Gender identity” had also started to appear in legal texts around the subject, despite the fact there was scant evidence that praying away gender identity was a thing. This was about to change. Just a few weeks after Brinton’s performance in Geneva, the contents of which journalist Wayne Besen has convincingly called into question, a trans-identifying teenage boy allegedly walked out in front of a tractor-trailer on a highway in Ohio. In a Tumblr suicide note, Leelah (born Joshua) Alcorn criticised his parents, who chose “biased” Christian therapists to help him deal with depression, and who wouldn’t allow him to medically transition.
His mother, a Christian, was vilified for misgendering and deadnaming him. She told reporters that he had only mentioned being transgender once, that she had never even heard him use the name “Leelah”. She also claimed that he was deeply depressed. His neighbour, apparently a close friend, also used male pronouns throughout his TV interview.
But while it wasn’t the Brinton-style torture story the transactivists had perhaps been waiting for, it was enough. A few days after his death, a White House petition calling for “Leelah’s Law” was launched. By March 2015, Obama said he would support a federal ban. By September, UN agencies officially began officially referencing torture in relation to violence against LGBT people.
Malta was first out of the gate in December 2015 with a ban; Germany, France, Belgium and some parts of Spain have all since followed. Mardrigal-Borloz, who had by this point taken up a gig as the UN’s independent expert on sexual orientation and gender identity, immediately started pushing for states to legislate for conversion therapy bans.
In 2017, the UK first commissioned research into the practice. Organisations such as Stonewall exaggerated the results of that research, even leading their coverage of polling on the subject with the claim that one in five trans people have suffered conversion therapy, when the data reveals nothing of the sort. The proportion, according to the survey results, of LGBT people “pressured to access services to question or change their sexual orientation when accessing healthcare services” was 5%.
Interestingly, after a failed first attempt to introduce a ban in 2018, Ireland is now having another go. This time it is backed up by an all-island (including Northern Ireland) group called the Anti-Conversion Therapy Coalition. While, from the outside, this might look like an inspiring cross-border initiative, it’s more likely to be because no evidence was found in the Republic, leading Irish activists to look forlornly to the North’s fire-and-brimstone protestants who have been known to offer (though not force) pray-away-the-gay services.
In France, things were even more weird. Lawmakers wanted proof that the country was suffering from an epidemic of conversion therapy that would necessitate a new law. In response, Laurence Vanceunebrock, parliament’s rapporteur on the subject, insisted that they had to pass the law in order to reveal the crime. As evidence, Vanceunebrock repeatedly claimed that there was a secret clinic carrying out electroconvulsive therapy on homosexuals in Montpellier. This drew the ire of the region’s medical association, which claimed that such a clinic would require specialised equipment and expertise that couldn’t possibly have passed under their radar. No witnesses ever came forward, despite an appeal.
Then, in 2021, when the law was already a done deal but not yet in force, a teenage trans-identifying female called Enzo was kidnapped, brought to a barn in the French countryside and tortured, in order to exorcise her of her transness. The rainbow NGOs kicked into high gear; #LiberezEnzo trended on social media, activists scoured the countryside looking for the barn, and Vanceunebrock was finally vindicated.
It soon transpired, however, that Enzo was at his grandmother’s house the whole time, and the family were working through their issues. The police, and Enzo, asked everyone to calm down and leave them alone. The barn was never found. Yet the law is now in force in France; efforts to modify or reprimand a person’s sexual orientation or gender identity can be punished by up to €45,000.
As for the Yogyakarta Principles, they received an upgrade in 2017, when Victor Madrigal-Borloz came on board as a signatory. And the newer version is even more extreme; it explicitly calls for an end to sex registration at birth.
Madrigal-Borloz, meanwhile, will step down from his UN mandate at the end of this year, and the extent of his success is currently being evaluated. All the signs suggest he will be lavished with praise. But as the 16 years since that fateful meeting in Yogyakarta have demonstrated, making a crime out of conventional therapy for gender-distressed teens has hardly been a victory.