Based on actual or perceived sexual orientation and gender identities (SOGI), people around the globe are victims of persistent human rights violations. These violations, perpetrated by both government and non-government actors range from violent acts like rape, torture, and murder to institutionalized discrimination in spheres like healthcare, housing, education and employment. Worldwide, 76 states criminalize same-sex acts among consenting adults. In seven of these nations – Iran, Mauritania, Saudi Arabia, Sudan, Yemen, parts of Nigeria and Somalia – being convicted can bring the death penalty.
SOGI-Based Human Rights Protections under International Law
The principles of equality and non-discrimination underpin the human rights regime. These principles were first set out in the Universal Declaration of Human Rights. Adopted by the United Nations General Assembly in 1948, the Declaration is the foundation of international human rights law. While not legally binding, it sets standards and serves as an authoritative interpretation of the UN Charter. Moreover, it is a powerful advocacy tool in applying diplomatic and moral pressure to governments that violate its articles.
The principles of equality and non-discrimination reappear in subsequent human rights treaties, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Unlike the Declaration, these treaties are legally binding on the signatories.
Specific SOGI-Based Protections
No treaty focuses on human rights specific to sexual orientation and gender identity, but norms and precedents have been and continue to be developed. In 2006, a group of experts met in Yogyakarta, Indonesia, to discuss patterns of SOGI-based human rights abuses. This group, whose membership was diverse geographically and in terms of expertise, included judges, academics, former UN officials, treaty body representatives, and members of NGOs. These experts developed the Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, usually referred to as the Yogyakarta Principles. The Principles are intended as a coherent and comprehensive identification of the obligation of States to respect, protect and fulfill the human rights of all persons regardless of their sexual orientation or gender identity. The Principles, though not legally binding in themselves, serve as an interpretive aid to human rights treaties.
The Yogyakarta Principles encompass a wide range of human rights: rights to universal enjoyment of human rights, non-discrimination, security, civil and political, economic, social and cultural rights and freedom of movement and asylum, among others.
International Refugee Law Protections for People Persecuted on the Basis of SOGI
As a result of persecution on the basis of their SOGI, many individuals are compelled to flee their countries of origin and seek protection elsewhere.
The 1951 Refugee Convention, updated by the 1967 Protocol, defines a refugee as a person who “owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.
The Convention thus establishes four criteria to be recognized as a refugee:
– Outside the country of origin
– Inability or unwillingness to seek the protection of country of origin
– Well-founded fear of persecution
– Persecution based on race, religion, nationality, membership in a particular social group, or political opinion
The Office of the United Nations High Commissioner for Refugees (UNHCR) has further issued specific guidelines on SOGI-based claims. These Guidelines are intended to provide legal interpretative guidance for governments, legal practitioners, decision makers and the judiciary, as well as UNHCR staff carrying out refugee status determination under its mandate. They help to determine whether the criteria established by the Convention are met. The criteria of ‘well-founded fear of persecution’ and the reasons for persecution are usually the most difficult to evaluate and the Guidelines help provide clarity.
Well-founded fear of persecution
The UNHCR Guidelines indicate that an applicant’s SOGI can be relevant to a refugee claim where he or she fears persecutory harm on account of his or her actual or perceived SOGI, which does not, or is seen not to, conform to prevailing political, cultural or social norms. Harm as a result of not conforming to expected gender roles is often a central element in refugee status claims.
The term “persecution”, though not expressly defined in the Convention, can be considered to involve serious human rights violations, including a threat to life or freedom or other kinds of serious harm. In addition, lesser forms of harm may cumulatively constitute persecution. The Guidelines recognize that discrimination is a common element in the experiences of many and that threats of serious abuse and violence are common. The Guidelines provide examples of acts that may be considered as persecution. For instance, physical, psychological and sexual violence, including rape, would generally meet the required threshold for establishing persecution. Efforts to change an individual’s sexual orientation or gender identity by force or coercion may constitute torture and may also amount to persecution. In addition, detention, including in psychiatric or medical institutions, on the sole basis of SOGI would normally constitute persecution. The Guidelines also state that where persons are at risk of persecution or punishment such as the death penalty, prison terms, or severe corporal punishment, the persecutory character is particularly evident.
Reasons for persecution
The five Convention grounds, race, religion, nationality, membership of a particular social group and political opinion, are not mutually exclusive and may overlap. More than one Convention ground may be relevant in a given case. Refugee claims based on SOGI are most commonly recognized under the “membership of a particular social group” ground. There is broad acknowledgment that lesbians, gay men, bisexuals, and transgender and intersex persons are members of “particular social groups” within the meaning of the refugee definition. Examples of other grounds applied in SOGI cases include activists and human rights defenders who may have either or both claims based on political opinion or religion if, for example, their advocacy is seen as going against prevailing political or religious views and practices.
People claiming refugee status on the basis of their SOGI have a history of discrimination, persecution, and social rejection in their country of origin. As a result of abuse in their country of origin detainees may suffer from complex post-traumatic stress disorder (PTSD). Immigration detention can also induce trauma in refugees and a non-normative SOGI may make them especially vulnerable to abuse in that setting.
Asylum Approval Rates
According to the 2012 revision of the Examining Asylum Seekers manual, in the US, the average rate of asylum approval rates is about 30%, but when pro bono medical or psychological evaluations are submitted, that rate rises to about 90%.