Sexual orientation and gender identity (LGBTI)

Click here for LGBTI resources listed by country

Resource persons

Dr Eddie A. Bruce-Jones

Email: eddiebrucejonesatgmail [dot] com

Dr Bruce-Jones serves on the Board of Directors of the UK Lesbian and Gay Immigration Group and the Institute of Race Relations. He is Lecturer in Law at the University of London, Birkbeck College School of Law, where he teaches European Union Law, Equality Law, Culture & Human Rights, and Critical Migration Law.  He was previously 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 has acted pro-bono on cases involving international and human rights law in Europe and the United States.

Denise Venturi

Email: d [dot] venturiatsssup [dot] it

Denise Venturi is a PhD Candidate in International Law and Human Rights at Scuola Sant'Anna (Italy) and KU Leuven (Belgium). Her doctoral research focuses on LGBTI asylum seekers in the context of the Common European Asylum System. Denise holds a European Master’s Degree in Human Rights and Democratisation from EIUC (Venice) and KU Leuven, a Postgraduate Degree in Asylum Law and a Degree in Law from the University of Florence.  Previously she has worked as an immigration and criminal defence lawyer in Italy. She also served as a pro-bono lawyer in cases related to asylum and migration law. In 2014 she was a  legal intern at PICUM Brussels, working on undocumented migrants' rights. Denise is Doctoral Affiliate of the Refugee Law Initiative and a member of Asilo In Europa, an Italian association focusing on asylum and refugee law in Europe. She also collaborates with Altrodiritto (an Italian NGO dealing with migrants and prisoners' rights) and MigraBo LGBTQI, an association providing support to LGBTQI asylum seekers in Italy.

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/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 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.

Resources

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.

 

Advocates for Informed Choice

 www.aiclegal.org
Advocates for Informed Choice, P.O. Box 676, Cotati, CA 94931
Email: directorataiclegal [dot] 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

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 mcpantheraatgmail [dot] com

The Black Coalition for AIDS Prevention - Black CAP

www.black-cap.com
110 Spadina Avenue, Suite 207, Toronto, Ontario M5V 2K4
Tel: (416) 97 79 955
Fax: (416) 97 77 664
Email: infoatblack-cap [dot] 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) 71 42 904
Fax: +1 (212) 71 42 973
Email: legalatimmigrationequality [dot] 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

www.queercy.org
Sair Nedim Sokak 1, Lefkosa Mersin 10 turke, Cyprus
Email: through the website

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

http://www.iglhrc.org/
NEW YORK
80 Maiden Lane, Suite 1505, New York, NY 10038
Tel: 212 43 06 054
Fax: 212 43 06 060
Email: iglhrcatiglhrc [dot] org

BUENOS AIRES
Tel/Fax: +54 11 46 65 75 27
Email: mferreyraatiglhrc [dot] org

CAPE TOWN: 
66 Plein Street, Cape Town, 8001
Tel: +27 21 46 93 704
Fax: +27 21 46 23 024
Email: cjohnsonatiglhrc [dot] org) or iglhrcatiglhrc [dot] 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)

www.irqr.net
20 Bay Street, 12th Floor, Toronto, Ontario M5J 2N8
Tel: (001) 41 65 48 41 71
Fax: (001) 41 62 14 20 43
Email: infoatirqr [dot] 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)

www.oraminternational.org
39 Drumm Street, 4th floor, San Francisco, CA 94111, USA
Contact: Neil Grungras, Executive Director
E-mail: infoatoraminternational [dot] org

Founded in 2008, ORAM – Organization for Refuge, Asylum & Migration, is the leading global advocate for people fleeing persecution based on their sexual orientation or gender identity. ORAM increases global support for thousands of lesbian, gay, bisexual, transgender and intersex (LGBTI) refugees and asylum seekers through advocacy and education. It provides technical assistance and training to individuals and professionals interested in working with Sexually and Gender Nonconforming (SGN) refugees, asylees, and asylum seekers.  Visit their online resource pages here

Refugee Action-'Free to be Me'

http://www.refugee-action.org.uk/campaigns/freetobeme/Freetobemeaction.aspx

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

Yogyakarta Principles

www.yogyakartaprinciples.org

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 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.

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

Center for Gender & Refugee Studies (CGRS)

http://cgrs.uchastings.edu/

200 McAllister Street; San Francisco, CA 94102
Tel: (415) 58 18 836
Fax: (415) 58 18 824

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, domenstic 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.

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