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

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.

A participant in Istanbul's 2015 gay pride parade reacts as Turkish police use a water canon to disperse the event. Emrah Gurel/Press Association. All rights reserved.

Studies of vulnerable migrant and refugee populations often overlook lesbian, gay, bisexual, transgender, 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.

In Lebanon and Syria, homosexual acts can be punished by one and three years of imprisonment, respectively.

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.

At the regional level, the Court of Justice of the European Union (CJEU) in November 2013 found that the existence of laws formally singling out homosexuals indicates that they are a “social group”. However, it went on to say that the existence of a discriminatory law does not amount to persecution as defined by the 1951 Refugee Convention, which requires a “sufficiently serious” violation of fundamental rights. This case effectively harmonised EU policy on recognising LGBTI individuals fleeing persecution as refugees, but stopped short of classifying all homophobic laws as evidence of persecution.

But there nonetheless

In parallel to the activists working for greater protection of vulnerable populations under the Refugee Convention, others are working to protect those who are currently in the system. In 2014, the Heartland Alliance released a report based on more than 60 interviews with LGBTI Syrian refugees in Lebanon. These individuals fled violence in their home country only to enter another system of institutionalised discrimination for their identity in the secondary country. In Lebanon and Syria, homosexual acts can be punished by one and three years of imprisonment, respectively. The study confirms that the group is disproportionately the target of discrimination and violence in Lebanon, finding that only 7% of respondents who had been the victims of physical violence reported the incident to the authorities.

Organisations like the UNHCR, the Organisation for Refuge, Asylum and Migration (ORAM), and Trust for London produce educational materials and training programmes aimed at refugee services, governments and international organisations to encourage proper treatment of LGBTI refugees. Yet, while NGOs and international organisations can improve their services and procedures, the most effective solution would be more inclusive, expedited policies granting asylum to persecuted LGBTI individuals.

I went to the gay pride parade in Istanbul last year and the police attacked us with water and gas.

Displaced LGBTI individuals are often waiting in limbo while refugee services and governments process their claims in complicated legal proceedings. Jarrar, a gay Syrian refugee living in Istanbul and registered with the UNHCR, has been waiting for over two years for the United States to grant him asylum. His future is uncertain but according to the Refugee Convention’s principle of non-refoulement, states may not return refugees to countries where their life and freedom would be threatened.

Jarrar told me his uncle and ISIS pose equal threats to his life. “I would be killed if I cross the border”, he said. He feels only slightly safer in Istanbul than in Syria and does not live in the prominent LGBTI-friendly area for fear of increased exposure. “I went to the gay pride parade there last year and the police came and attacked us with water and gas”. Even though he is an activist, he feels safer networking online and finding events hosted out-of-town by organisations like the Arab Foundation for Freedoms and Equality (AFE) while hiding his identity in the local community.

Jarrar fled to Turkey in 2014 with two gay friends. The US has already granted asylum to one of these men. Jarrar´s dream is to move to California to reconnect with several of his friends who have already moved there. In fact, neither advocacy nor protection is on his mind as much as the dream of what may come. He lit up with excitement when he told me about his friends in San Francisco and San Diego who already have jobs and are doing well. “Usually, people from the United States are very friendly and I like to be around friendly people … I lost two years of my life here doing nothing. If I were in a final country I could be improving my language, finishing my studies, working, finding the love of my life, I don’t know, but doing something real”.

What makes a refugee?

All refugees carry with them a range of intersecting identities which they hope to be able to express, even as policy and media discourses often construct certain favourable identities within the framework of asylum and migration while ignoring a wide array of other identities. In some cases, refugees are often stripped of their individuality because they have been identified singularly as refugees. Within the context of this identity politics, LGBTI refugees learn to carefully adapt their identity to manoeuvre through the power relations of everything from securing housing and employment to interactions with local authorities and international NGOs.

Progress for LGBTI refugee policies has been slow in some regions, like the EU, and extremely lacking in others. In 2014, the CJEU ruled that refugees no longer have to show videos of themselves engaging in same-sex activities or answer questions which would make them ‘prove’ in stereotypical ways that they are LGBTI. All progress helps, but this case shows just how far we still have to go.

There is a need to recognise the diversity in large populations of asylum seekers and to see identities as fluid constructs used to adapt and survive. Governments and NGOs need to take measures to protect vulnerable individuals who may not fit into archaic conceptions of fixed identity. Perhaps Jarrar said it best: “Maybe because there are huge numbers of refugees, they can’t handle story by story — but at the same time, that’s not my problem. I have the right to asylum”.

About the author

Austin Ruckstuhl is a research intern at the United Nations University Institute on Globalisation, Culture and Mobility. He is also a master's candidate at the Institut Barcelona d'Estudis Internacionals, where his research examines the role of civil society in international forums. 


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