We’re Here and We’re Queer – A Critical Appraisal of LGBTQI+ Protection within the International Human Rights Regime

By Ambika Gupta*

Photo by Ece AK on Pexels.com

The LGBTQI+ community has always faced discrimination and marginalisation in numerous socioeconomic domains, but ‘queer migration’ owing to persecution based on someone’s identification is a relatively new issue. Throughout the asylum application procedure, LGBTQI+ applicants confront several legal, societal, and procedural challenges. Generally, the experiences of LGBTQI+ people are often homogenised, and assessing authorities neglect to consider aspects such as ethnicity, religion, and nationality, which have also a role in the persecution people encounter. A disproportionate emphasis is placed on demonstrating claimants’ sexual/gender identity, rather than their historical persecution, highlighting the necessity of paying particular consideration to concerns of credibility in the asylum assessment process.

The 1951 Convention Relating to the Status of Refugees grants refugees a variety of rights; yet the actual situation of LGBTQI+ refugees in host nations shows us that these rights remain often on paper. LGBTQI+ members endure prejudice whether seeking housing, work, or medical support, among other things. They are doubly stigmatised because of their sexual orientation and gender identity (SOGI) along with their refugee status. Such a refusal undermines the fundamental goal of refugee law, which is to provide refugees with protection. To underline the necessity for structural reforms in their asylum regimes, here we have examined reports of LGBTQI+ migrants. Due to fundamental distinctions such as sexual orientation and vulnerability in comparison to other refugees, special measures are required to defend their interests, which are frequently waived off by officials’ stereotyped attitudes.

SOGI as a Ground for Persecution

A well- founded fear of persecution is a pre-requisite for making an asylum claim. To determine well-founded fear, the applicant’s subjective fear of persecution should be given primary importance. However, the assessment of the validity of the claims is incredibly subjective and heavily depends on the applicant’s narrative. Moreover, to make things more difficult, according to the Guidelines, past persecution is not a criterion for granting asylum.

Although there is no agreed description of persecution, the UNHCR Guidelines have specified a number of actions that constitute persecution for the purpose of granting refuge, including violence, incarceration, torture, and other serious human and civil rights abuses. Still, as argued by Aaron Sussman, there are specific patterns or practises of discrimination based on SOGI in a nation, and the existence of these elements fosters an environment in which LGBT+ people are more prone to experience discrimination.

By law, refugees and asylum claimants are entrusted with fundamental, non-discriminatory human rights. A particular social group (PSG) has the right to apply for asylum when they are being persecuted abroad, including when such persecution is motivated by their SOGI, according to Yogyakarta Principle number 23. In practice however, for the LGBTQI+ community, these rights are consistently abused in the form of rapes, torture, arbitrary incarceration, discrimination in access to public facilities, etc.

What is a particular social group, though? What ties it together? The most used interpretation is that what makes a PSG is an “immutable characteristic.The Matter of Toboso Alfonso (Board of Immigration Appeal, 1990), in which a gay asylum seeker was given asylum because he was being persecuted because of his orientation, was the initial case to acknowledge homosexuality as an innate feature. In Amanfi v. Ashcroft (US Court of Appeal for the Third Circuit), the court confirmed that SOGI persecution might be carried out on the ground of an imputed or observed orientation. That brings up the issue of whether it is reasonable to expect someone to hide their identity or to be less forthcoming than they would want in order to avoid being targeted or harassed. In this context, the UK Supreme Court in HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department, resoundingly ruled that LGBT+ people should not be required to hide their individuality in order to flee or avert persecution in their homeland because doing so would violate cardinal tenets of international human rights, including privacy, dignity, and equality.

Analysing the Refugee Status Determination (RSD) Process

Compared to other migrants, LGBTQI+ refugees and asylum seekers experience significant difficulties during RSD. Profound social stereotypes make it challenging to properly examine and evaluate asylum seekers, even though they are given rights under the Convention. The applicant’s credibility and the supporting evidence are the two considerations the RSD employs when assessing the claims.

  • Credibility

Regarding the issue of credibility, the Guidelines specify that a considerate and individualised system should be used to evaluate the applicant’s claim. Though, there is no set procedure to establish the validity of the applicant’s SOGI claim, the Guidelines suggest plausible markers; for example, if the applicant describes himself as LGBT+ or has “come out” to others. These signs are merely helpful in determining the veracity of the claim, but they are not decisive.

First, the candidates depart their native nation owing to persecution from their group or state, making them traumatised and defenceless. Mental trauma, as well as intrinsic prejudice, have an impact on the interview, rendering the candidate uncomfortable or incapable of accurately retelling the experience, resulting in discrepancies and obfuscations in the facts presented.

Second, while the Guidelines specify that the applicant’s statement is adequate substantiation of his SOGI, in practise the officials do not follow this rule. When it comes to assertions predicated on SOGI, there is an attitude of scepticism. Due to their lack of belief, officers now often request corroborating proof from applicants in addition to their statement, which applicants are not always able to provide because, like other asylum seekers, they rarely have the freedom to compile documentation prior leaving their homeland.

Thirdly, the authorities ultimately decide the RSD of the claim, and they do so with preconceived notions and assumptions in mind. The officials frequently conduct unethical and lewd interrogations. As the applicant’s claim in the In Re Soto Vega case was dismissed since he did not exhibit stereotypically homosexual outward traits, it becomes pertinent in this respect.

  • Evidence

On the evidential front, the Guidelines declare unequivocally that the applicant’s testimony should be considered primary evidence, as they frequently experience harassment from their community. Medical evidence such as sex-change procedures, hormone therapies, and so on may be presented as corroborative evidence to support the applicant’s claim. Although the Guidelines expressly forbid any sort of medical examination to determine the applicant’s sexuality, many nations use penile and vaginal plethysmography. Such procedures not only violate human dignity, but they also lack scientific justification.

Post Status Determination: An Analysis

Besides the RSD procedure, LGBTQI+ asylum seekers experience bigotry because of their sexuality. They remain among the most marginalized segments in the community even after receiving refugee protection in the host nation. The rehabilitation procedure is also quite difficult for them. Transgender refugees and asylum seekers may be disproportionately affected by punitive or detrimental detention tactics, such as being denied access to hormone medication and other gender-affirming medical care. Unlike many migrants, LGBTQI+ asylum seekers and refugees may face opposition from their diasporic or ethnic communities due to homophobia or transphobia, which mirror persecutory conditions in their home country. Inherent homophobia and transphobia, verification problems, and intersectional repression all add to the difficulty of providing them with sufficient safeguards and lead to the deprivation of their human rights. LGBTQI+ refugees are extremely ostracised, with little access to jobs, healthcare, housing, and monetary support. They are publicly secluded and frequently confronted with physical, psychological, and sexual abuse, with no legal redress. As a result, even in countries that appear to be LGBTQI+ inclusive, there is a need to build LGBTQI+ friendly environments.

Some Final Reflections: Queering the System

Considering the intimate relationship between refugee law and human rights, it is presently necessary to design a comprehensive strategy to address the refugee issue that fully recognises the fundamental human rights of refugees. We must fight relentlessly to improve the preservation of LGBT QI+ people’s cardinal rights.

In the refugee mechanism, they are most susceptible to prejudice, harassment, and sexual assault. Because the claims of LGBT+ refugees and asylum seekers exhibit specific obstacles such as the burden of proving identity, feelings of “isolation and loneliness” amidst the uncertainty of “waiting for their cases to be heard” as they lacked access to broader immigrant networks due to homophobia and transphobia, they demand distinct measures to protect their rights. As a result, the author presents specific proposals to make the refugee process more diverse and responsive to LGBT+ refugees’ challenges and requirements.

The urgency of taking these actions is increased by the fact that LGBT+ asylum seekers are extremely vulnerable to losing their security, which might have catastrophic effects on their dignity.

*The author is a fifth-year law student pursuing BA LLB from Vivekananda Institute of Professional Studies (affiliated to GGSIPU, New Delhi, India). She has worked with organizations such as NITI Aayog, National Human Rights Commission, Delhi State Legal Services Authority (DSLSA) to name a few. With the zeal to analyse the issues of contemporary relevance she has authored several research papers and had them published in reputable law journals.

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