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Sexual orientation and gender identity
Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Refugees
Resource person: Eddie A. Bruce-Jones
Email:
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Introduction
Lesbian, Gay, Bisexual, Transgender and Intersex* (LGBTI) people are forced to lead lives of silence in many, if not most, places in the world. LGBTI identity and non-conformist sexual activity may be punished in many countries by torture and death. Today, an increasing number of LGBTI-identified people are unwilling or unable to exist in this state of fear and try to escape their persecution by seeking asylum in foreign states. While there are legitimate and winnable claims for LGBTI people to gain refugee status under the 1951 UN Convention Relating to the Status of Refugees (hereinafter: “the Geneva Convention”), many states do not recognize the perils faced by LGBTI people and send them back to their country of origin, where they face persecution. Other states grant applicants residency permission on humanitarian grounds rather than the asylum grounds covered by the Geneva Convention.
*Intersex is a word adopted to criticize conventional approaches to sex or gender assignment and refers to people with intermediate or atypical combinations of biological features that conventionally define "males" and "females" (including but not limited to sexual organs or chromosomes).
Overview
Over the past two decades, with the emergence of a discourse of general social and legal acceptance of LGBTI people in Western Europe, Australia and North America, the number of people seeking asylum on the grounds of persecution based on their LGBTI identity or lifestyles has steadily risen. A significant amount of asylum case law has been produced with regard to LGBTI applicants. For a short but comprehensive summary of comparative case law and the basic argument structure required for bringing sustainable LGBTI asylum claims, see the European Council on Refugees and Exiles, ELENA Research Paper on Sexual Orientation as a Ground for Recognition of Refugee Status, available at http://www.ecre.org/files/orient.pdf
There are two main Geneva Convention grounds upon which LGBTI applicants have based their claims: “particular social group” and “political opinion” grounds. The most important and most frequently argued ground in this regard is membership in a “particular social group” or PSG. This ground is a catch-all for groups not explicitly covered in the five other Geneva Convention grounds, and case law in a significant number of countries regards sexual minorities as constituting a group for the purposes of fitting under PSG grounds. The second ground, having potential for future claims but with less historical precedent, is “political opinion”. This ground ostensibly allows for a claims based on political opinions held or perceived to be held particularly by LGBTI claimants (including but not limited to the opinion that LGBTI people should enjoy equal rights).
After LGBTI applicants prove that they are covered by one of the two applicable grounds under the Geneva Convention, they must prove that they face persecution. To bring a claim of asylum, LGBTI applicants must first prove that they were themselves victims of persecution based on their sexual identity or related political opinions. One of the biggest obstacles to proving persecution and winning LGBTI asylum claims is the argument that one need not reveal one’s identity as lesbian, gay, bisexual, transgender, transsexual or intersex; that is, if one leads a double life, keeping sexuality private, s/he protects her/himself from the threat of persecution to a large extent. This argument presumes that leading a double life is possible and that applicants are sufficiently shielded from persecution if they merely mute their sexuality. However, in practice, publicly proclaiming heterosexuality or gender conformity does not prevent so-called “witch-hunts”, harassment on the basis of rumoured homosexuality, or eventual discovery of an immaculately hidden private life.
LGBTI asylum claims should be supplemented by country reports, documenting abuse of others on the basis of their sexual identity. This is particularly true in cases where the initial abuse of the applicant may not have risen to the level of persecution. The abuse documented in country reports must rise to the level of persecution and must be systematic to be persuasive. Country reports allow applicants to argue that they will be in danger when they return to their home countries by constituting persuasive evidence that, since their sexual identity has previously been discovered, they will be imprisoned, tortured or killed upon return. The country reports also serve to support the proposition that LGBTI applicants are members of a “particular social group” as identified as such by the persecutors and/or the state.
Publications
This is a list of publications that lend some insight into the type of arguments used in LGBTI claims and the types of responses encountered, giving an overview of the global jurisprudential landscape for such asylum claims.
- Marc Epprecht, Heterosexual Africa? The History of an Idea from the Age of Exploration to the Age of AIDS, Athens OH: Ohio University Press (2008)
- Joe Landau, '“Soft Immutability” and "Imputed Gay Identity": Recent Developments in Transgender and Sexual-Orientation-Based Asylum Law' 32 Fordham Urban Law Journal (2005)
- Jenni Millbank, '"The Ring of Truth": A Case Study of Credibility Assessment in Particular Social Group Refugee Determinations' 21 International Journal of Refugee Law 1 (2009)
- Stephen O. Murray & Will Roscoe, Boy Wives and Female Husbands: Studies in African Homosexualities, New York: Palgrave Macmillan (1998)
- Nicole LaViolette, 'The UNHCR’S Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity' 13 American Society of International Law 10 (30 July 2009)
- U.N. High Commissioner for Refugees, Division of International Protection Services, Selected Documents Relating to Sexual Orientation and Gender Identity Relevant to International Refugee Protection, October 2009.
Resources
AsylumLaw.org
http://www.asylumlaw.org/legal_tools/index.cfm?fuseaction=&countryID=233This page for sexual minority and HIV-positive asylum applicants contains vital documents, including country laws against homosexuality, country condition reports, and country-specific news links.
International Gay & Lesbian Human Rights Commission
http://www.iglhrc.org/
New York Office: 80 Maiden Lane, Suite 1505, New York, NY 10038
Tel: 212.430.6054
Fax: 212.430.6060
Email:
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Buenos Aires Office:
Tel/Fax: +54.11.4665.7527
Email:
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Cape Town Office: 66 Plein Street, Cape Town, 8001
Tel: +27.21.469.3704
Fax: +27.21.462.3024
Email:
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The mission of the International Gay and Lesbian Human Rights Commission is advancing human rights for everyone, everywhere to end discrimination based on sexual orientation, gender identity, or gender expression. The website includes country of origin information for countries on every continent. For general enquiries, email: .
Immigration Equality
www.immigrationequality.org/contactus.php
Immigration Equality, 40 Exchange Place, 17th Floor, New York, NY 10005
Tel: +1 (212) 714 2904
Fax: +1 (212) 714 2973
Email:
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Immigration Equality are a national organization that advocates for full equality for LGBT and HIV-positive individuals under asylum law in the USA. They do both policy work on the Uniting American Families Act, the HIV ban, and other issues, and in the area of asylum they do direct representation, run a pro bono project, and provide mentoring for other attorneys. LGBT foreign nationals are provided with up-to-date information about immigration law via trainings, informational materials, and by answering email and telephone inquiries. Immigration Equality run a pro bono asylum project to assist LGBT and HIV-positive asylum seekers to find free or low-cost legal representation. They provide technical assistance to lawyers working on sexual orientation, transgender identity, or HIV status-based asylum applications, or other immigration applications where the client’s LGBT or HIV-positive identity is at issue in the case. They have an extensive resources section on their website which includes manuals to assist asylum claims, and also maintain a list of LGBT/HIV-friendly private immigration attorneys to provide legal representation for those who contact them. In the Resources for Lawyers section, they also provide links to all precedential court cases concerning LGBT/H asylum.
The Black Coalition for AIDS Prevention - Black CAP
www.black-cap.com
110 Spadina Avenue, Suite 207, Toronto, Ontario M5V 2K4
Tel: (416) 977 - 9955
Fax: (416) 977 - 7664
Email: info[at]black-cap.com
Black CAP launched an LGBT Settlement Program in March 2009 in response to the large number of LGBT immigrants and refugees who seek services at Black CAP. The settlement needs of Black LGBTQ community members are especially complex. In many cases, LGBT members of the community are unable to access mainstream settlement services as a result of stigma and homophobia. As with our clients living with HIV/AIDS, their plan to migrate to Canada was initiated as a result of violence, isolation and trauma in their country of origin. This is an important contextual factor and as a result settlement services must address this reality. Many providers are unable to offer this support in a way that recognizes the specific settlement challenges that Black LGBT newcomers face. Black CAP's settlement programs include support for gay refugee youth.
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Special Issues in Refugee Status Determination 
