Persistent Needs and Gaps: the Protection of LGBTI Refugees

In all regions of the world people continue to flee their homes on account of their sexual orientation or gender identity. Criminal sanctions in over seventy countries, as well as pervasive homophobia, which is often fueled by political and civil leaders, generate this forced exile. Often faced with limited resources, lesbian, gay, bisexual, transgender or intersex (LGBTI) persons may have no choice but to flee to asylum states where homophobia is as pervasive as the environments which they initially fled.  As they seek safe refuge, LGBTI refugees and asylum seekers face a number of specific protection problems which hinder their ability to access fair asylum or refugee status determination procedures, as well as protection and assistance measures. LGBTI refugees endure discrimination as they navigate asylum systems, many of which require them to register with national authorities who may either consider consensual same-sex conduct a crime or harbor homophobic attitudes. They may also experience bias-motivated violence (often referred to as hate crime), including sexual violence, as a cause of flight or while in countries of first asylum. While all refugees and asylum seekers experience challenges in seeking protection and often have limited access to assistance, the intersection of identities – of being an asylum seeker or refugee as well as a lesbian or gay man, transgender woman or man or intersex person – produces a “double marginality,” which can lead to profound isolation and marginalization, rendering LGBTI refugees in many instances invisible and unable to access support and resources.

Recently a number of States and the UN refugee agency – UNHCR – have taken steps to address some of the protection challenges facing LGBTI refugees, including by affirming that persecution related to sexual orientation or gender identity can constitute a valid basis for an asylum claim. While States retain the primary responsibility to protect refugees, UNHCR also plays a critical role in protecting refugees due to its protection mandate, as well as its current role as one of the largest adjudicators of asylum claims worldwide and as a principal provider of humanitarian assistance to those fleeing conflict.

Given its functions, this paper focuses on UNHCR’s response to the protection needs of LGBTI refugees and asylum seekers. UNHCR has taken some important steps to protect LGBTI refugees, including through the issuing of guidance notes on the adjudication of LGBTI claims and developing case studies of LGBTI persons for use in its regular staff training activities. In addition UNHCR will soon convene a Roundtable on Asylum-Seekers and Refugees Seeking Protection on Account of their Sexual Orientation and Gender Identity, which is designed to address gaps in policy and practice in this area.  This step is particularly welcome. While UNHCR has taken these and other steps to address the protection needs of LGBTI refugees, a number of significant gaps remain which should be addressed as UNHCR moves forward with these efforts, including:

• Inadequate recognition of LGBTI persons as a category of persons with particular needs – UNHCR’s primary tools to identify at-risk individuals and specific needs within refugee populations – including the Heightened Risk Assessment Tool; the Age, Gender, Diversity Mainstreaming (AGDM) framework; and the Participatory Assessment Tool – contain limited reference to sexual orientation or gender identity as a basis of vulnerability, thereby limiting the ability of UNHCR and partner staff to identify and recognize the protection needs of LGBTI refugees, which may include the need for resettlement or protection from sexual or other violence;
• An absence of practical guidance to ensure LGBTI refugees and asylum seekers are protected in practice  – UNHCR has acknowledged the need for this kind of practical guidance.  The guidance, after it has been developed and disseminated, should provide practical suggestions and measures to ensure that LGBTI refugees are able to access refugee status or asylum procedures as well as assistance and protection programming. Implementation of such guidance would also require regular monitoring of LGBTI refugee protection concerns by UNHCR country offices supported by UNHCR headquarters;
• Inconsistencies in current protection guidance with regard to sexual orientation and gender identity – Current UNHCR guidance on a wide range of protection issues, such as the protection of women and girls, includes limited and sometimes unclear and confusing references to sexual orientation or gender identity, reflecting a lack of clarity on the protection needs of LGBTI persons and how UNHCR should respond.

These gaps are particularly concerning given that many LGBTI refugees may face renewed persecution as they flee to host States which either criminalize same-sex conduct or where homophobia is pervasive, causing LGBTI refugees to remain underground or to fear disclosing their sexual orientation or gender identity as part of their asylum claim. While the spirit of UNHCR’s current guidance and assessment tools is inclusion for all without distinction, the absence of specific guidance to ensure LGBTI refugees are protected in practice undermines the protection of a highly vulnerable group. UNHCR interventions are also limited due to a lack of effective and regular monitoring and data collection in this area, and limited headquarters oversight of UNHCR’s response at the field level to LGBTI refugee protection issues. As a result of these and other gaps outlined in this paper, responses to the needs of LGBTI refugees initiated by UNHCR, NGOs or States are varied, ad hoc, or non-existent.

As UNHCR moves forward with its response to LGBTI refugees, it should implement the recommendations outlined in this paper to enhance the ability of LGBTI refugees to actually access asylum procedures, resettlement, and other crucial assistance and protection measures including protection from violence. Key recommendations to UNHCR, which are further elaborated in the last section of this paper, include:

• Develop specific and practical guidance on protecting LGBTI persons of concern and ensure its full implementation. Such guidance should be tailored to specific regions and be developed in close partnership with civil society groups including refugee rights groups and those who work with sexual minorities in different parts of the world. This guidance should cover the range of the displacement cycle – from identification to the durable solution phase – and seek to ensure LGBTI refugees are able to access services and support on the basis of equality and with dignity;
• Provide adequate technical resources and support to ensure field offices respond in a consistent manner to the protection needs of LGBTI persons of concern. This support should include regular monitoring, training, missions, and best-practice workshops with relevant stakeholders;
• Review and revise as necessary existing UNHCR guidelines and tools to identify LGBTI refugees as a category of persons with specific needs and vulnerabilities.  Such tools and guidance include UNHCR’s AGDM Framework, the Heightened Risk Assessment Tool, and the Specific Needs Codes; and
• Partner with local human rights groups, including LGBTI groups, to work with and extend services to LGBTI refugees in their communities and countries as a means to support community-based protection.

Recommendations are also provided to donor and resettlement States below.

Section I of this paper introduces the situation of LGBTI people worldwide and explains why they may opt to flee their home countries. Section II outlines examples of specific protection gaps experienced by LGBTI refugees. Section III discusses UNHCR’s response to the protection needs of LGBTI refugees. The paper concludes with a detailed set of recommendations to both UNHCR and States.