By Jesse Bernstein
Human Rights First's Refugee Protection Program
From the opinion pages of the world's most influential newspapers to the hallways of high schools in Oregon and beyond, globally people are taking a fresh look at an old problem - the persistent and pervasive discrimination faced by the world's lesbian, gay, bisexual and transgender (LGBT) population. In certain instances this discrimination pushes LGBT people outside of their national borders in search of asylum in countries which, at least in theory, are supposed to provide a "safe haven."
The most recent chapter in this painful saga is a proposed "Anti-Homosexuality Bill" in Uganda, legislation that would criminalize consensual homosexual behavior and punish by death those accused of this "crime." The Bill would strengthen existing provisions of the penal code which already criminalize same-sex conduct. Such bigoted policies already exist in many parts of the world, a reality that has forced people to become refugees as they flee their home countries in search of safety and security abroad. In Uganda, for example, long before the most recent bill was introduced, rights groups had spent years documenting arbitrary arrests of those who engaged in consensual homosexual conduct.
In fact, roughly 80 countries worldwide criminalize homosexuality, and in five of these countries same-sex relations are punishable by death. Even if these laws are not always systematically enforced, they present serious obstacles to LGBT people seeking to enjoy their fundamental rights.
Asylum Processes Drive LGBT People Underground
Often faced with limited resources, LGBT people in danger may have no choice but to flee to countries where homophobia is as pervasive as the environments which they initially fled. For example, millions of civilians have fled the armed conflicts in the eastern Democratic Republic of Congo and southern Sudan and have sought refuge in places like Uganda and Kenya. Applying for asylum in both countries requires registering with national authorities; yet both countries currently maintain laws which criminalize homosexuality. Now the situation of LGBT people in Uganda is worse in light of the proposed new bill. How, then, do we expect vulnerable LGBT refugees to find safe haven and apply for asylum?
In a different region of the world, LGBT refugees in Turkey also face serious discrimination as they navigate the asylum system, which also requires them to register with national authorities. The Helsinki Citizens Assembly (HCA), a local human rights organization based in Istanbul, together with ORAM, recently published a report documenting this serious problem. Though Turkish law does not criminalize homosexuality, it does not explicitly protect LGBT people from discrimination and authorities often use "morality" laws to discriminate against the LGBT community. LGBT people endure extreme levels of violence, including murder, and courts restrict LGBT civil society groups and human rights defenders from operating freely.
Recent actions against the Turkish group Black Pink Triangle Izmir (Siyah Pembe Üçgen Izmir) are a perfect example of this discrimination. The organization is being threatened with closure after a local governor asked the group to remove LGBT references from its charter. When Black Pink Triangle Izmir refused, a motion for closure was issued and remains pending.
At-risk and vulnerable LGBT refugees who have difficulty finding safe haven and applying for asylum often make the difficult decision to remain underground and use invisibility as their only source of protection.
But for those who do choose to seek official refuge, other troubling issues may arise. Trainings, guidelines, and basic conduct used by aid agencies and host governments often do not account for the specific protection concerns of LGBT asylum-seekers. For example, a recent Refugee Law Project documentary, Gender Against Men, highlights the experience of a Congolese refugee man in Uganda who was raped on multiple occasions. After being interviewed by female UN refugee protection officers who were not adequately trained to handle or evaluate male rape cases, he stated, "They believed rape is not done to men. When you explain this problem, people don't listen ... I had the bad luck of being interviewed by female protection officers who were unable to grasp that I was raped."
In Turkey, HCA and ORAM report that LGBT refugees, many of whom lack social and familial networks of support, are frequently denied social welfare assistance because of their sexual orientation or gender identity. Staff of the UN refugee agency - UNHCR - and Turkish authorities have also reportedly conducted themselves inappropriately with LGBT refugees during refugee status determination and protection interviews. Interviewers have tended to ask invasive questions about sexual intercourse in an attempt to determine if an applicant is genuinely homosexual, illustrating the lack of knowledge or training on sexual orientation.
Iraqi refugees in Syria, Jordan and Turkey experience similar protection problems. Human Rights Watch recently documented the forced return of LGBT refugees to Iraq on account of their real or perceived sexual orientation.
Incidents like these drive all LGBT people further underground, and LGBT refugees are particularly affected due to their uncertain legal status. This situation is dire, but there are glimmers of hope.
Steps in the Right Direction
UNHCR has taken positive first steps toward acknowledging that LGBT refugees face specific protection concerns. In November 2008, UNHCR issued a Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity. The note highlights issues that must be taken into account when assessing asylum claims based on sexual orientation or gender identity.
Moving forward, UNHCR should outline LGBT-sensitive questions to allow for effective and inoffensive assessment of LGBT asylum claims. It should also provide additional protection guidance to ensure its programming is inclusive of LGBT refugees and sexual orientation and gender identity-related training to all relevant staff. In addition, UNHCR should take steps to develop procedures to assist LGBT refugees and other vulnerable individuals who may face imminent risk and require fast-tracked resettlement or even evacuation to a safe third country while refugee status processing takes place.
Finally, UNHCR must publicly acknowledge that criminalization of homosexuality - in Uganda or anywhere else in the world - negatively impacts refugees' fundamental human right to seek and enjoy asylum. It also limits their ability to access protection and assistance. This acknowledgement will not only assist in efforts to address homophobia within UNHCR and the broader refugee stakeholder community, but it will also help to stimulate dialogue among States, NGOs and other UN agencies on the need to robustly address this important protection issue, which is clearly of global concern.
Human Rights First knows that these changes will not come easily or quickly, but they are nonetheless worth fighting for. To join in our effort, click here.