Sexual orientation and gender identity
LGBTI Resources Listed by Country
Resource person: Eddie A. Bruce-Jones
Email: eddiebrucejones [at] gmail [dot] com (eddiebrucejones[at]gmail.com)
Eddie Bruce-Jones is Lecturer in Law at the University of London, Birkbeck College School of Law, where he teaches European Union Law, Law and Culture and a graduate seminar on asylum law. He is also Visiting Lecturer in Public International Law at King’s College London School of Law and a research affiliate at the Institute for European Ethnology at Humboldt University in Berlin. Bruce-Jones serves on the Board of Directors of the Organization for Refuge, Asylum and Migration (ORAM), which aims to end persecution based on sexuality and gender-based violence.
Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Refugees
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.
- European Council on Refugees and Exiles, ELENA Research Paper on Sexual Orientation as a Ground for Recognition of Refugee Status
- Helsinki Citizens’ Assembly – Turkey Refugee Advocacy and Support Program & ORAM - Organization for Refuge, Asylum & Migration, Unsafe Haven: The Security Challenges Facing Lesbian, Gay, Bisexual & Transgender Asylum Seekers & Refugees in Turkey (June 2009)
- Immigration Equality, LGBT/HIV Asylum Manual
- Jansen, Sabine and Thomas Spijkerboer. “Fleeing Homophobia: Asylum Claims Related to Sexuality and Gender Identity in Europe.” COC Nederland and Vrije Universiteit Amsterdam, September 2011.
- 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)
- Joe Landau, '“Soft Immutability” and "Imputed Gay Identity": Recent Developments in Transgender and Sexual-Orientation-Based Asylum Law' 32 Fordham Urban Law Journal (2005)
- 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)
- 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)
- Stephen O. Murray & Will Roscoe, Boy Wives and Female Husbands: Studies in African Homosexualities, New York: Palgrave Macmillan (1998)
- United Nations, Convention (1951) and Protocol (1967) Relating to the Status of Refugees
- U.N. High Commissioner for Refugees, UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity (21 Nov. 2008)
- 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
Advocates for Informed Choice
Advocates for Informed Choice
P.O. Box 676
Cotati, CA 94931
director [at] aiclegal [dot] org (Email: director[at]aiclegal.org)
This organisation’s mission is promoting the civil rights of children born with variations of sex anatomy. AIC is the first, and only, organization in the U.S. to undertake a coordinated strategy of legal advocacy for the rights of children with intersex conditions or DSDs (differences of sex development).
AsylumLaw.org
http://www.asylumlaw.org/legal_tools/index.cfm?fuseaction=&countryID=233
This 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.
The Black Coalition for AIDS Prevention - Black CAP
110 Spadina Avenue, Suite 207, Toronto, Ontario M5V 2K4
Tel: (416) 977 - 9955
Fax: (416) 977 - 7664
Email: info [at] black-cap [dot] com (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.
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: legal [at] immigrationequality [dot] org (legal[at]immigrationequality.org)
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.
Initiative Against Homophobia - Homofobiye Karsi Inisiyatif
Sair Nedim Sokak 1, Lefkosa Mersin 10 turke, Cyprus
The Initiative against Homophobia is based in Cyprus and works for the rights of gay, lesbian, bisexual, trans and intersex persons.
International Gay & Lesbian Human Rights Commission
New York Office: 80 Maiden Lane, Suite 1505, New York, NY 10038
Tel: 212.430.6054
Fax: 212.430.6060
Email: iglhrc [at] iglhrc [dot] org (iglhrc[at]iglhrc.org)
Buenos Aires Office:
Tel/Fax: +54.11.4665.7527
Email: mferreyra [at] iglhrc [dot] org (mferreyra[at]iglhrc.org)
Cape Town Office: 66 Plein Street, Cape Town, 8001
Tel: +27.21.469.3704
Fax: +27.21.462.3024
Email: cjohnson [at] iglhrc [dot] org (cjohnson[at]iglhrc.org) / iglhrc [at] iglhrc [dot] org (iglhrc[at]iglhrc.org)
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 address above.
Iranian Railroad for Queer Refugees Inc. (IRQR)
20 Bay Street, 12th Floor, Toronto, Ontario M5J 2N8
Tel: (001) 416-548-4171
Fax: (001) 416-214-2043
Email: info [at] irqr [dot] net (info[at]irqr.net)
IRQR is an international queer human rights organization based in Toronto, Canada. IRQR help Iranian gay, lesbian, bisexual and transgendered refugees all over the world when threatened with deportation back to Iran, and also assist Iranian queers in obtaining asylum in friendly countries. Their goals are to end discrimination against sexual minorities in Iran; To raise awareness of queer oppression in Iran and in other countries; To advocate for the Iranian queer population; fight for the abolition of execution in Iran; and to end systematic abuses of human rights in Iran.
Many Iranians fleeing persecution for reason of their sexuality go to Turkey. UNHCR interviews these refugees and decides whether their case for asylum is valid. If they are granted asylum status, the UNHCR finds a new country for each person on the basis of their profile. However, IRQR assists some of these refugees through the process and, whenever possible, provides funds for safe houses from donations, since Turkey is also a homophobic and 'transphobic society' and queer people are not physically safe there either.
Organisation for Refuge, Asylum and Migration (ORAM)
39 Drumm Street, 4th floor, San Francisco, CA 94111
Tel: +1-415-373-5299
Fax: +1-415-373-9191
Contact: Rachel Levitan
E-mail: rachel[at]oraminternational.org
Founded in 2008, ORAM is the first migration organization focusing exclusively on refugees fleeing sexual and gender-based violence worldwide. A new network spanning national, ethnic, religious, racial and gender divides, ORAM provides clients with free legal representation and conducts advocacy and education on their behalf.
Through the creative marriage of modern technology and legal expertise, ORAM provides clients isolated in countries of transit with free counseling and assistance. ORAM’s advocacy encompasses non-governmental organizations, inter-governmental organizations, governments and community groups. ORAM's educational efforts include lectures, writings and a variety of presentation modes.
Refugee Action-'Free to be Me'
Campaign is an awareness initiative to further educate UK border agents and the general public regarding sexuality and the freedom to live openly as LGBT.
http://www.refugee-action.org.uk/campaigns/freetobeme/Freetobemeaction.aspx
Yogyakarta Principles
The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity are “a set of principles on the application of international human rights law in relation to sexual orientation and gender identity. The Principles affirm binding international legal standards with which all States must comply. They promise a different future where all people born free and equal in dignity and rights can fulfill that precious birthright.”
LGBTI Training Module
A new Training Module on adjudicating LGBTI asylum and refugee claims is now available on our self study page. Produced by the US Citizenship and Immigration Services (USCIS) and thus the rules are US-oriented, it provides useful materials generally.
Highlights of the Module include:
Helpful definitions, and appropriately sensitive questions, for officers to use, including specific instructions about questions to avoid, such as those related to specific sexual practices;
LGBTI - specific examples of harm that may constitute persecution, including: laws criminalizing same-sex sexual activity in an applicant’s home country; forced medical or psychiatric treatment intended to “cure” an applicant’s sexual orientation; forced marriage to an opposite-gender spouse; severe economic harm; and beatings or other physical abuse;
Instructions for analyzing complex issues, for example, that a former opposite-gender marriage does not mean an applicant is not lesbian or gay; that LGBTI applicants are not required to meet pre-conceived stereotypes or “look gay;” and that cultural norms within the LGBTI community in an applicant’s home country may differ from those in the US, and, here the course becomes very US-centric in that it provides a non-exhaustive list of possible one-year filing deadline exceptions, but does include a discussion of those who have only recently ‘come out’ as LGBTI; recent steps to transition from birth gender to a corrected gender; a recent HIV diagnosis; post-traumatic stress disorder; or severe family opposition to an applicant’s identity.
