Persecuted at Home, Harassed Across Borders: Denial of LGBTQ+ Refugee Rights

Wazida Rahman and Manvitha Bangalore Shekar

LGBTQ+ refugees and asylum seekers persistently confront profound challenges due to systemic legal disparities between countries, ranging from partial recognition of their identities and rights to outright denial of their existence. The rationale behind the numerous LGBTQ+ individuals seeking refuge and asylum lies in the grave violations of their inherent human rights and severe persecution due to their perceived sexual orientation or gender identity in their country of origin. In countries such as Jamaica, Iran, and Sudan, LGBTQ+ individuals face harsh judicial punishments including life imprisonment and even the death sentence. Beyond legal persecution, they are subjected to horrific abuses, including forced sterilization or castration, domestic violence, corrective rape, coerced sex work, and violence perpetrated by law enforcement officials. Consequently, many are compelled to flee their home countries and seek asylum under Article 14 of the Universal Declaration of Human Rights, in pursuit of safety and fundamental human rights.

However, the United Nations High Commissioner for Refugees reports that only 37 countries currently offer formal asylum protections for individuals facing persecution based on their sexual orientation or gender identity. Studies indicate that LGBTQ+ asylum seekers frequently encounter heightened scrutiny, including intrusive questioning about their experiences of persecution, sexual history, and identity. The absence of legal recognition for LGBTQ+ individuals in many countries complicates their asylum applications and refugee status and legal frameworks often impose conformity to societal norms.

Legal barriers to LGBTQ+ asylum claims

The first recognition of LGBTQ+ individuals as part of the “particular social group” category for refugee status was made by a Netherlands court in 1981 and later adopted by the European Union, forming the foundation for their inclusion within the legal framework. The UNHCR Guidelines on International Protection clarified that refugee claims by LGBTQ+ individuals should be recognized based on sexual orientation and gender identity under Article 1A(2) of the 1951 Convention and its 1967 Protocol. Irrespective, the asylum process remains far from inclusive for LGBTQ+ individuals, as legal shortcomings, societal stereotypes, and deep-rooted social taboos often lead to harassment and discrimination by asylum officials, border authorities, and even fellow refugees. LGBTQ+ refugee claims are often rejected due to a lack of legal recognition in certain jurisdictions, cultural and societal prejudices, insufficient training among asylum officers, and the stringent burden of proof required.

The New Zealand Refugee Status Appeals Authority condemned a discretionary requirement, which recommended concealment of LGBT+ individuals’ identities to avoid abuse and harassment by legal authorities. The Authority rebutted in HJ (Iran) and HT (Cameroon) that silencing their sexual identity mirrored the submissive behaviour demanded by the persecutors in their countries of origin and was inconsistent with the Refugee Convention, and this led to its abolition in various countries. Similarly, the US Supreme Court case Lawrence v. Texas found that the expression of sexuality is an integral part of a person’s identity and ruled that individuals should not face governmental or judicial interference in defining their identities and relationships.

While revoking the discretion requirement was hailed by some as a progressive step, others raised concerns that the transition from discretion to credibility assessment imposed additional burdens on LGBT+ asylum seekers. The credibility assessment requirement evaluates two key components: 1) establishing an individual’s sexual orientation and gender identity, and 2) demonstrating past persecution or a reasonable likelihood of future persecution based on that identity. Research has indicated that adjudicators in host countries frequently depend on heteronormative and Western frameworks of sexual identity, which can marginalize asylum seekers whose experiences do not align with these models. Consequently, applicants may feel pressured, including by their advocates, to alter their narratives or appearances to meet these expectations. Given the lack of a standardized way to prove sexual orientation or gender identity, adjudicators’ assessments can be highly subjective, shaped by personal biases, and prone to arbitrary, unpredictable, or inappropriate questioning and rejection of asylum claims.

The second crucial element in evaluating sexual orientation and gender identity asylum claims is proving past persecution or the likelihood of future persecution, examined through the ‘well-founded fear’ test for harm caused or anticipated. The evaluation of this second element lacks a standardized method to assess the harm endured or the fear of persecution, as opposed to mere discrimination. Consequently, the review of asylum applications is inherently subjective and has resulted in the unjust denial of many legitimate applications. This situation disproportionately affects LGBTQ+ individuals, who face heightened vulnerability and persecution in their home countries.

Socio-economic struggles

LGBTQ+ refugees and asylum seekers also face severe social discrimination, which significantly impedes their integration into host countries or temporary places of refuge. This discrimination manifests as isolation, harassment, and violence creating intersectional vulnerabilities across various settings in countries of first asylum, refugee camps, and host communities. Over 90% of LGBTQ+ refugee respondents in a Kenyan study reported verbal abuse, and 83% faced physical violence, including instances of sexual assault, often inflicted by fellow refugees and community members harbouring deep-seated prejudices against non-heteronormative identities.

The study also found LGBTQ+ asylum seekers face systemic barriers in accessing essential services, such as healthcare and legal support, and only 33% are actively engaged in economic activity. Many find themselves economically disenfranchised, reliant on food rations, and lacking financial resources, creating a cycle of poverty. For those with children, the challenges of protecting their families from stigma and internal camp violence compound their difficulties as refugees. Their children may experience discrimination, leading to trauma that can affect their long-term well-being, while the threat of child abuse further exacerbates the fear and anxiety LGBTQ+ parents face in such precarious living conditions.

In a climate where acceptance is scarce and homophobia prevails, LGBTQ+ asylum seekers often feel invisible and powerless, with limited recourse to report abuses or seek justice. These individuals not only seek safety from physical harm but also yearn for a place where they can live with autonomy and dignity, free from the fears that forced them to leave their home countries.

Recommendations to protect rights

To address these challenges and safeguard their rights, a comprehensive and multifaceted approach encompassing legal, economic, social, political, and cultural dimensions is needed. Robust asylum laws and policies are needed at the state level, ensuring formal recognition and protection of LGBTQ+ refugees, along with a standardized asylum application framework, incorporating both subjective and objective criteria. Prejudices and subconscious biases stemming from cultural and social disparities among nations must be mitigated to foster a fair and inclusive asylum system.

Law enforcement staff and those determining refugee status require sexual orientation training, including on the specific challenges faced by LGBTQ+ asylum seekers. Policies should be designed to prevent social and economic discrimination, to increase job opportunities, and access to education, and to promote greater acceptance of gender diversity. Furthermore, access to legal services and the establishment of safe, confidential reporting mechanisms for discrimination and violence are vital, enabling individuals to report abuses without fear of retaliation. By implementing these human rights-based strategies, a more inclusive and equitable environment for LGBTQ+ refugees could be created, where they are protected from violence and discrimination and can thrive in their new communities.

Wazida Rahman, LLM, PhD, is Assistant Professor of Law, Rajiv Ghandi National University of Law, Punjab, India

Manvitha Bangalore Shekar, BA LLB (Hons) Student, Rajiv Ghandi National University of Law, Punjab, India