It has been over 30 years since the historic United States judgment that protected Fidel Armando Toboso Alfonso, a gay man from Cuba, from deportation based on tangible and violent threats to his life back home due to his sexual orientation. However, the tragic suicide of Egyptian queer rights activist and refugee Sarah Hegazi in Canada earlier this month speaks volumes about how the international community is still failing to address the specific needs and issues faced by asylum seekers of sexual and gender minorities.
Unlike those fleeing political violence and persecution—who may also include LGBTI individuals—the recognition of gender and sexual identity-based violence as a separate indicator of persecution under international refugee law has been monumental in recognizing the rights of such individuals to live violence-free and dignified lives. But it was only in 2012 that the UN High Commission for Refugees published a set of guidelines, complementing the 1951 Refugee Convention and its 1967 Protocol, to define and address lesbian, gay, bisexual, transgender, and intersex (LGBTI) claims for refugee status.
According to the Convention, LGBTI applicants can seek asylum under two main claims— “particular social group” (PSG), and “political opinion”. The concept of a PSG is to create a “catch-all” system for groups that are not otherwise covered under the other five Convention grounds, and this is usually the most common ground under which claims are made. The second ground of “political opinion” allows for claims of persecution of LGBTI people for having, or being perceived to hold, contrary political opinions to their governments (which includes, but is not limited to, the notion that LGBTI persons deserve to enjoy equal treatment and rights under the law.)
Further, the 2012 UNHCR guidelines state that anyone fleeing violence and persecution based on their sexual orientation, sex characteristics, or gender identity can apply to be a refugee under the ambit of international law. This includes people who identify within the spectrum of LGBTI as well as those who do not conform to these particular labels. According to a recent FAQ published by the UNHCR on the International Day Against Homophobia, Transphobia and Biphobia (IDAHOT) this year, those seeking protection are only required to establish a tangible fear of persecution based on their sexual or gender identity—or how it is perceived—to be eligible for refugee status to any country.
So, for an LGBTI applicant to be granted asylum, they are first required to prove that they have faced or been threatened with violent persecution on the basis of their sexual orientation, gender identity, or related political opinions. And although international guidelines emphasize “the premise that applicants are entitled to live in society as who they are and need not hide that”, several countries have cited the possible reality of avoiding persecution by concealment and living a “double life” as grounds to reject LGBTI asylum claims. However, it is widely known that this is highly impractical in deeply homophobic societies, where many do not need to publicly proclaim their sexual or gender identities to be victims of harassment and violence on those grounds—even a perfectly hidden personal life can come undone due to rumours, perceived stereotypes of behaviour, and “witch hunts”.
However, despite the increased international attention being given to violence against gender and sexual minorities, there are several glaring issues in the conceptualization and practice of transitional justice for these particular groups in the international community. Currently, almost 70 UN member states continue to criminalize consensual homosexual acts, with six even imposing the death penalty for the same. And even in the preferred destinations for LGBTI asylum seekers—such as the US, Canada, Europe, and Australia—the existence of pro-LGBTI legislation does not necessarily guarantee refugees from this PSG with rehabilitative tools or protection from similar societal violence in their host states. The European Court of Human Rights has gone a step further to rule that a contrario LGBTI applicants (i.e. those coming from states that do not criminalize same-sex acts) also fall within the ambit of the PSG and have a well-founded need for international protection if they fear persecution on the basis of their gender identity or sexual orientation.
For those fleeing persecution in Sub-Saharan Africa—especially from Uganda, Rwanda, the Congos, Somalia, and Zimbabwe—Kenya has emerged as one of the foremost destinations for LGBTI individuals, even in the absence of legislative inability to provide protection to sexual minorities in the country. Kenya is still the only East African nation where it is legal for LGBTI persons to seek asylum and get registered as refugees. Nevertheless, there have been several reports of hate crimes and threats against these individuals on homophobic and transphobic grounds in the capital city of Nairobi as well as in the designated camps in Kakuma and Dadaab.
Even the UNHCR acknowledges that the unique positioning of LGBTI asylum seekers often does not allow them to access help usually available for refugees in host countries. While resettlement to a third country from the intermediary asylum is the preferred and safest trajectory for LGBTI asylum seekers, fewer than 0.5% are actually resettled due to states’ domestic reluctance to accept, on one hand, refugees, and on the other, sexual and gender minorities.
A conference conducted last year in Australia on the topic of queer displacements identified some of the major challenges faced by those choosing to seek asylum under the grounds of PSG. Firstly, they pointed out that refugee service agencies themselves are ill-equipped to provide inclusive and gender-sensitive services, even for women and LGBTI persons entering as political refugees. For example, Renee Dixson, co-founder of the Forcibly Displaced People Network in Australia revealed that asylum decision-makers often hold stereotypes that queer or lesbian women cannot have been previously married or be mothers. Further, an independent study in the UK revealed that one-fifth of all LGBTI asylum interviews had instances of stereotyping, with a tenth containing inappropriate queries that questioned the validity of same-gender relationships or were likely to “elicit sexually explicit responses”.
Immigration and visa offices also continue to display deeply transphobic behaviours such as the use of deadnames (or birth names) for trans and intersex individuals, or assign centers to them on the basis of their gender at birth. These are all crucial pieces of information notarized on official paperwork that can go on to determine their lifestyles and educational or employment statuses in the host country. Further, several civil society-led initiatives aimed at rehabilitating LGBTI persons are unable to assist a diverse range of people belonging to several linguistic and cultural groups.
The stigma surrounding psychological counselling and mental health services in certain cultures also hinders LGBTI peoples’ access to receiving adequate trauma support, among other services. In Canada, where Hegazi lost her life to PTSD and depression, the gruelling refugee claim process and non-acceptance by country-of-origin diaspora tends to alienate LGBTI refugees and discourage them from seeking help in local communities. Further, mental health services for asylum seekers and refugee claimants are limited and are not supported by federal or provincial healthcare financing systems. LGBTI refugee claimants in Canada are also affected by Ottawa’s Safe Third Country Agreement, which does not allow people to enter as refugees if they are arriving from the US.
The coronavirus pandemic has exacerbated all of these issues—currently, neither the UNHCR nor the International Organization for Migration (IOM) have specific data on LGBTI PSG asylum seekers; although, the IOM has noted that more than 3,000 refugees in Africa and 10,000 around the globe have faced a temporary halt for their resettlement cases. And while the halt was lifted on Thursday, the process to resettle refugees is going to be an extremely slow one. In Germany, strict lockdown regulations have led to a suspension of civil society-led support group meetings for LGBTI refugees and migrants, leaving many lonely or stuck in unwelcoming homes and neighbourhoods through these trying times. US President Donald Trump’s recent decision to curb immigration by stripping migrants and asylum seekers off their workers’ rights also stands to pose a major threat to the future of LGBTI asylum seekers from the Global South.
See also: What is the Impact of COVID-19 on International Relief Efforts?
The concept of transitional justice requires states to provide victims of violence and abuse with adequate redressal mechanisms and processes that allow them to receive accountability and reconciliation for their past traumas. This includes, but is not limited to, state-directed reparations policies and rehabilitation and educational programmes aimed at mitigating future abuse. Unfortunately, until now, a majority of states have been unable to take responsibility for the protection of gender and sexual minorities, and the onus on rehabilitation is left on civil society groups who have limited resources. Local LGBTI actors are also confronted with structural barriers that impede them from advancing rights at the policy level.
The vulnerability of LGBTI refugees has been further compounded by the apparent rise of conservatism during this pandemic, wherein several governments have closed borders to all kinds of immigrants. Further, economic lockdowns world over have widened the gap for the economically vulnerable, leaving LGBTI and other minorities in several countries with little to no resources to fend for themselves, increasing their risk of exploitation and abuse, which will, in turn, lead to a hike in the number of potential asylum seekers in the future.
For now, compliant governments must ensure that their immigration and humanitarian staff are provided with adequate sensitivity training to deal with the unique psychological and physiological needs of LGBTI refugees and asylum seekers so as to avoid further trauma and hardships. They must also be prepared to sensitively handle the large influx of applications that will arise after the pandemic opens borders.
However, as current human rights discourse continues to grapple with the dichotomy between cultural relativism and universal rights, especially during an international health emergency, the call for a global recognition of LGBTI rights in domestic governance has been pushed to the backburner. The insufficiencies of international law to bind and pressurize homophobic governments and societies into accepting LGBTI persons will continue to reflect as a failure of the existing world order to protect an extremely vulnerable PSG.
Image Source: The New York Times