Resource persons: Dr Eddie A. Bruce-Jones and Denise Venturi
Dr Eddie A. Bruce-Jones
Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Refugees
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).
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/component/downloads/downloads/144.html
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 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.
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.
- The UNHCR has released its Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity. This basically updates and improves on the UNHCR Guidance Note on the same topic released four years ago.
- Annual Review of the Human Rights Situation of LGBTI People in Europe 2011 (ILGA Europe, May 2012) [ text ]
- Organization for Refugee Asylum & Migration (ORAM), Opening Doors: A Global Survey of NGO Attitudes Towards LGBTI Refugees & Asylum Seekers (June 2012)
- 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: 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)
- UK Lesbian and Gay Immigration Group, “Missing the Mark. Decision Making on Lesbian, Gay (Bisexual, Transgender and Intersex) Claims.” September 2013.
- United Nations, Convention (1951) and Protocol (1967) Relating to the Status of Refugee
- 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.
- Confounding Identities: The Paradox of LGBT Children Under Asylum Law,” UC Davis Law Review, vol. 45, no. 2 (Dec. 2011)
- Canadian Appellate Level Decisions Dealing with Refugee Claims Based on Sexual Orientation and Gender Identity – Listed According to the Definition of a Convention Refugee (April 2015)
- Bruce-Jones, Eddie, ‘ Death Zones, Comfort Zones: Queering the Refugee Question,’ International Journal on Minority and Group Rights, vol. 22, no 1 (2015)
- Defining a Particular Social Group Based on the Meaning of Non-Discrimination in International Human Rights Law: Utilizing the Definition in Deciding Refugee Claims Based on Sexual Orientation (April 2015)
- LGBT Asylum Seekers: A Toxic Mix of Homophobia, Misogyny and Ignorance Corrupts the Asylum System (Free Movement Blog, April 2015)
- ” The Ordeal for Humanity: LGBTI Asylum Seekers in Europe Facing the Limits of Human Rights,” AG About Gender: International Journal of Gender Studies, vol. 4, no. 7 (2015)
- Refugee System Perpetuates Trauma for LGBTQ Asylum Seekers (Trauma & Mental Health Report, May 2015)
- Researching the Situation of Lesbian, Gay, and Bisexual Persons (LGB) in Countries of Origin, Practice Guide Series (EASO, April 2015)
- New York University Journal of International Law and Politics Symposium on LGBT Asylum and Refugee Law (March 2012)
Advocates for Informed Choice
Advocates for Informed Choice, P.O. Box 676, Cotati, CA 94931
This organisation’s mission is to promote 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).
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.
LGBTQ Disaster Assistance
LGBTQ Disaster Assistance is an online network connecting practitioners, academics and students interested in contributing to the health and well-being of sexual minorities before, during, and in the aftermath of natural, technological, or human-induced disasters or mass emergencies.
Contact: Marcilyn Cianfarani firstname.lastname@example.org
The Black Coalition for AIDS Prevention – Black CAP
20 Victoria St. 4th floor, Toronto, Ontario M5C 2N8
Tel: (416) 977 – 9955
Fax: (416) 977 – 7664
Black CAP launched an LGBT Settlement Program in March 2009 in response to a 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, 40 Exchange Place, 17th Floor, New York, NY 10005
Tel: +1 (212) 714-2904, (917) 654-9696, (310) 780-0736
Fax: +1 (315) 825-4058
Immigration Equality is 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 training, 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
Human Rights House:
Şht. Ferruh Cambaz Sokak No:4 – Köşklüçiftlik / Nicosia
Queer Cyprus Association & Famagusta Youth Centre (MAGEM) Office:
Mehmet Ali Görmüş Sokak/ Mağusa Kale Pasajı / Famagusta
Tel: +90 542 8585847
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
OUTRIGHT ACTION INTERNATIONAL
216 EAST 45TH STREET, 17TH FLOOR
NEW YORK, NY 10017
Tel: 212 43 06 054
Fax: 212 43 06 060
Tel/Fax: +54 11 46 65 75 27
66 Plein Street, Cape Town, 8001
Tel: +27 21 46 93 704
Fax: +27 21 46 23 024
Email: email@example.com) or firstname.lastname@example.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.
International Railroad for Queer Refugees Inc. (IRQR)
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)
Founded in 2008, ORAM – the Organization for Refuge, Asylum and Migration is a pioneer in advocating for the protection and well-being of extremely vulnerable LGBTIQ refugees and asylum seekers globally. With the help of supporters and partners, ORAM provides legal assistance, advances economic inclusion through livelihood programs, build coalitions, champions the rights of LGBTIQ asylum seekers and refugees on the global stage, provide critical emergency response to the communities they serve and promotes sustainable solutions. Visit their online resource pages at https://oramrefugee.org/seeking-help/.
Refugee Action-‘Free to be Me’
The 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
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, while not binding, do affirm a range of provisions on humane treatment and non-discrimination that are binding or persuasive under various international conventions and regional and national laws. They promise a different future where all people born free and equal in dignity and rights can fulfil 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.
The Movement Building Boot Camp (MBBC)
WHO IS THIS FOR?
The MBBC online platform is an e-learning space for African activists doing progressive work around sexuality, gender, justice and rights. It features training guides and knowledge resources to support creative thinking, strategising and discussions among activists working for social transformation inclusive of issues of sexuality and gender identity. The training resources are organised around three intersecting pillars: Concepts (theoretical frameworks for understanding our world), Practice (activist tools and methods) and Self (individual and collective well-being and security).
HOW TO USE THIS SITE
This site is intended to support self-organised learning and training. The materials are designed to be directly downloaded and used by individuals and activist groups. It includes training modules to help facilitate your own training or learning. The library contains references and materials for further reading. Content created for this site is available for free under a Creative Commons license that allows it to be used for non-commercial purposes. In the spirit of movement building, please do let us know how you are using the materials, and if you would like to contribute information for the site.
Building Rainbow Bridges for LGBTI Refugees
Rainbow Bridges, ORAM’s newest publication, shares the rare experience gained by ORAM during its yearlong pilot program assisting resettled LGBTI refugees in the San Francisco Bay Area. The refugees assisted had fled torture, severe harassment, and even execution in their countries of origin.
Rainbow Bridges includes:
- Ways to secure U.S. admission for a refugee who is still overseas
- Steps to build support systems for refugees among LGBTI and queer-friendly communities
- Suggestions on providing a warm welcome to refugees during their first crucial months in the U.S.
- Tips on safe and affordable housing for LGBTI refugees
- Suggestions on how helping refugees can strengthen communities immeasurably
200 McAllister Street; San Francisco, CA 94102
Tel: (415) 565-4877
Fax: (415) 581-8824
The Center for Gender & Refugee Studies (CGRS) has resources for women seeking asylum on account of domestic violence, including country conditions information on domestic violence in Honduras and an expert declaration on domestic violence in Honduras. If you would like to receive a copy of this information, please fill out a request for information on our website and we will respond shortly.
We provide all resources at no cost.
We have country conditions information and advisory materials for a number of other countries and topics, especially information regarding gender-based violence, persecution of LGBT individuals, and children.
We cover anywhere and everywhere, although our resources regarding domestic violence and violence against women in Mexico and Central America are the most extensive.
We have information packets for over 100 countries and with 4-6 weeks’ notice are happy to produce new packets for specific cases concerning gender, LGBT, or children’s issues. In addition to those packets, we have general expert declarations regarding domestic violence in Mexico, violence against indigenous women in Mexico, domestic violence in Guatemala, domestic violence in Honduras, domestic violence in El Salvador, violence against women generally in El Salvador, one on FGC generally, and one on incest.
If you have a case for which you are in need of assistance, please feel free to submit a request at the above URL and we will share with you anything that may be of help.