Report
Published on September 9, 2010
In all regions of the world people continue to flee their homes on account of their sexual orientation or gender identity. Criminal sanctions in over seventy countries, as well as pervasive homophobia, which is often fueled by political and civil leaders, generate this forced exile. Often faced with limited resources, lesbian, gay, bisexual, transgender or intersex (LGBTI) persons may have no choice but to flee to asylum states where homophobia is as pervasive as the environments which they initially fled. As they seek safe refuge, LGBTI refugees and asylum seekers face a number of specific protection problems which hinder their ability to access fair asylum or refugee status determination procedures, as well as protection and assistance measures. LGBTI refugees endure discrimination as they navigate asylum systems, many of which require them to register with national authorities who may either consider consensual same-sex conduct a crime or harbor homophobic attitudes. They may also experience bias-motivated violence (often referred to as hate crime), including sexual violence, as a cause of flight or while in countries of first asylum. While all refugees and asylum seekers experience challenges in seeking protection and often have limited access to assistance, the intersection of identities – of being an asylum seeker or refugee as well as a lesbian or gay man, transgender woman or man or intersex person – produces a “double marginality,” which can lead to profound isolation and marginalization, rendering LGBTI refugees in many instances invisible and unable to access support and resources.
Recently a number of States and the UN refugee agency – UNHCR – have taken steps to address some of the protection challenges facing LGBTI refugees, including by affirming that persecution related to sexual orientation or gender identity can constitute a valid basis for an asylum claim. While States retain the primary responsibility to protect refugees, UNHCR also plays a critical role in protecting refugees due to its protection mandate, as well as its current role as one of the largest adjudicators of asylum claims worldwide and as a principal provider of humanitarian assistance to those fleeing conflict.
Given its functions, this paper focuses on UNHCR’s response to the protection needs of LGBTI refugees and asylum seekers. UNHCR has taken some important steps to protect LGBTI refugees, including through the issuing of guidance notes on the adjudication of LGBTI claims and developing case studies of LGBTI persons for use in its regular staff training activities. In addition UNHCR will soon convene a Roundtable on Asylum-Seekers and Refugees Seeking Protection on Account of their Sexual Orientation and Gender Identity, which is designed to address gaps in policy and practice in this area. This step is particularly welcome. While UNHCR has taken these and other steps to address the protection needs of LGBTI refugees, a number of significant gaps remain which should be addressed as UNHCR moves forward with these efforts, including:
These gaps are particularly concerning given that many LGBTI refugees may face renewed persecution as they flee to host States which either criminalize same-sex conduct or where homophobia is pervasive, causing LGBTI refugees to remain underground or to fear disclosing their sexual orientation or gender identity as part of their asylum claim. While the spirit of UNHCR’s current guidance and assessment tools is inclusion for all without distinction, the absence of specific guidance to ensure LGBTI refugees are protected in practice undermines the protection of a highly vulnerable group. UNHCR interventions are also limited due to a lack of effective and regular monitoring and data collection in this area, and limited headquarters oversight of UNHCR’s response at the field level to LGBTI refugee protection issues. As a result of these and other gaps outlined in this paper, responses to the needs of LGBTI refugees initiated by UNHCR, NGOs or States are varied, ad hoc, or non-existent.
As UNHCR moves forward with its response to LGBTI refugees, it should implement the recommendations outlined in this paper to enhance the ability of LGBTI refugees to actually access asylum procedures, resettlement, and other crucial assistance and protection measures including protection from violence. Key recommendations to UNHCR, which are further elaborated in the last section of this paper, include:
Recommendations are also provided to donor and resettlement States below.
Section I of this paper introduces the situation of LGBTI people worldwide and explains why they may opt to flee their home countries. Section II outlines examples of specific protection gaps experienced by LGBTI refugees. Section III discusses UNHCR’s response to the protection needs of LGBTI refugees. The paper concludes with a detailed set of recommendations to both UNHCR and States.
