Fleeing for simply being: the legal and subjective battles faced by LGBTI refugees

UN Flags_sOn June 13, 2016 openDemocracy reported: LGBTI refugees contend with compounding layers of vulnerability. They are rarely afforded additional protection, and fear of persecution due to sexual orientation is often an insufficient basis for an asylum claim.

Studies of vulnerable migrant and refugee populations often overlook lesbian, gay, bisexual, transsexual, and intersex (LGBTI) individuals. These individuals commonly face discrimination by their governments, communities, and families, sometimes in combination with other causes of forced migration, such as economic hardship or violent conflict.

The International Lesbian, Gay, Bisexual, Trans and Intersex Association’s tenth annual report State Sponsored Homophobia, released in 2015, outlines the laws criminalising homosexual acts in 75 countries. Eight states have declared such acts punishable by death, and Iran, Mauritania, Saudi Arabia, Sudan, and Yemen have implemented this horrific practice. Despite evidence of frequent violence and discrimination against LGBTI individuals living under these laws, there is no international consensus recognising them as refugees when they flee persecution in their home country.

Governments choose who they recognise as a refugee under their own legal codes. Therefore, there are two primary areas or ‘categories’ that demand attention. The first consists of LGBTI individuals fleeing their homes for fear of persecution due to their sexuality or gender identity. These individuals are not universally recognised as refugees. The second includes those LGBTI individuals fleeing other types of persecution – such as violent conflict – who often face additional danger and discrimination at every stage of displacement.

Alongside these legal questions are the subjective dimensions of being displaced as an LGBTI individual. In the context of the liminal spaces they often occupy, refugees and LGBTI individuals are constantly navigating spaces of fluid identities and closets. For some, especially LGBTI individuals living under discriminatory laws, this process of choosing how and when to perform a certain identity, also called ‘navigating the closet’, can be a matter of life and death. Having fled their homes in fear, these vulnerable asylum seekers take solace in the hope that one day safer spaces and more accepting hearts may welcome their bodies and identities.

Not the ‘right’ type of persecution

Under the 1951 Refugee Convention, “refugees are individuals who have fled their country due to a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership of a particular social group.” This standard fails to properly acknowledge the complexity of cases involved. Since 2012, the Office of the United Nations High Commissioner for Human Rights (OHCHR) has worked to advance the recognition of LGBTI refugees as a “particular social group”. However, the UN General Assembly has never adopted a resolution on the issue, an act which could pressure states to be more welcoming.

On the other hand, the UNHCR does recognise LGBTI individuals fleeing identity persecution as refugees and is an active supporter of their asylum claims at the international level. It estimated that 37 countries have, to varying degrees and with variable frequency, accepted refugees on the basis of sexuality or gender identity. The US, to give one example, is estimated to accept around 100 LGBTI refugees annually.

Countries who explicitly accept these special cases need to do so with greater frequency, and those without official policies need to formalise their support for accepting LGBTI refugees. Closer to the source of the problem, laws criminalising same-sex acts should be banned by a UN resolution, with sanctions placed on any government carrying out executions on the basis of sexuality or gender identity.

Read more at: Fleeing for simply being: the legal and subjective battles faced by LGBTI refugees | openDemocracy

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