Background

Introduction

The Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (IE SOGI), Mr. Graeme Reid, will dedicate his thematic report to the 59th session of the United Nations Human Rights Council to an exploration of forced displacement as it relates to real or perceived sexual orientation or gender identity (SOGI). This report will seek to build upon the global roundtable discussion co-convened by the United Nations High Commissioner for Refugees (UNHCR) and the IE SOGI in 2021, as well as their stocktaking follow-up discussion on progress in this area in June 2023. With an aim to track progress since 2021 on protective measures and solutions for lesbian, gay, bisexual, trans and other gender-diverse (LGBT) forcibly displaced persons, this report will seek to identify current and emerging challenges faced by LGBT persons throughout the displacement cycle and share good practices among UN Member States, UNHCR and other UN agencies, civil society organizations (CSOs), including those led by LGBT forcibly displaced individuals, and other constituencies across the humanitarian, human rights, and development ecosystems.

Background context

Recent decades have seen a gradual but steady wave of legislative reform across the globe to decriminalize consensual same-sex activity. Despite this trend of legal liberalization, instances of violence based on sexual orientation or gender identity are continuing and, in some settings, on the rise. This escalating violence can be contextualized within the growing polarization in global politics and the consequent backlash against human rights. State and non-State actors in many countries are attempting to roll back hard-won progress by dismantling existing legal protections for LGBT individuals. Unscrupulous politicians and anti-rights groups are engineering societal anxiety by peddling a false narrative that portrays fundamental freedoms of LGBT individuals as antithetical to “traditional” family values and the safety of children. This harmful rhetoric serves to dehumanize, and vilify LGBT persons, further entrenching stigma and endangering their lives, rights and freedoms.

Key protection challenges across the displacement cycle

Currently, 60 UN Member States criminalize private, consensual same-sex intimacy either de jure or de facto, with at least 6 UN Member States imposing the death penalty for such conduct. Some 14 UN Member States criminalize forms of gender expression, specifically targeting transgender and gender non-conforming individuals. Beyond explicit criminalization, broader legal frameworks surrounding indecency, morality, pornography, public order, vagrancy, marriage, and sex work are often disproportionately applied to target LGBT persons. Further, legal protections against discrimination on grounds of diverse SOGI may be unavailable or inaccessible. As a result, decriminalization of same-sex intimacy has not always resulted in meaningful freedom or equality for LGBT individuals, who continue to face violence, harassment and discrimination from both State and non-State actors.

Due to these compounding exclusions and vulnerabilities, many LGBT individuals are compelled to flee their homes in search of safety and environments where they are better protected. While some manage to find refuge elsewhere, various factors often prevent persecuted LGBT people from leaving their country, at times rendering them internally displaced. It is important to note that in some cases, situations of conflict or disasters may lead to forced displacement that may not initially be linked to discrimination.

Regardless of the initial cause of displacement, LGBT individuals face unique challenges throughout their journey, based on sexual orientation or gender identity. Those who cross internationally recognized borders frequently end up in neighboring countries, which often exhibit similar patterns of violence and discrimination as their countries of origin. This situation is further complicated by co-factors such as race, gender, ethnicity, disability, religious affiliation, that may intensify experiences of discrimination and marginalization. Moreover, LGBT refugees or those perceived as LGBT may experience intracommunity discrimination and violence from other refugees also coming from their countries of origin. This creates additional barriers to accessing support in host countries particularly when reception states attempt to group refugees geographically who are from similar cultural backgrounds.

Consequently, in countries of first asylum, LGBT forcibly displaced persons continue to face prejudice and discrimination manifested through violence, threats to safety, food insecurity, limited or no access to healthcare, unsanitary and inadequate shelter; thus failing to obtain significantly better protections or social acceptance than what they left behind. Resettlement in a third country, where the rights of refugees are respected and ensured, is exceedingly rare and is not guaranteed even for highly vulnerable individuals.

Throughout the entire displacement cycle, LGBT individuals – particularly transgender and visibly gender non-conforming people – experience heightened vulnerability to arbitrary arrest, detention, discrimination at borders and checkpoints, and gender-based violence. Despite domestic and international protections for internally displaced persons (IDPs), refugees, asylum seekers, and other forcibly displaced persons, LGBT persons often encounter varying manifestations of the same deprivation and discrimination throughout the displacement cycle that initially compelled them to flee their homes.

International framework for forcibly displaced persons

There are more than 122 million people forcibly displaced worldwide due to persecution, armed conflict, violence, human rights violations, and in the context of the impacts of climate change and disasters. Among them are refugees, asylum seekers, IDPs, and stateless people who seek protection from discrimination, abuse and persecution related to their real or imputed SOGI.

The international legal framework for IDPs primarily centres on the Guiding Principles on Internal Displacement, introduced in 1998. While not legally binding, these 30 principles have gained broad international recognition, including acknowledgement by the UN General Assembly. Drawing from existing international human rights law, humanitarian law, and refugee law, they serve as an authoritative standard for IDP protection. These principles are supplemented by regional instruments like the African Union's Kampala Convention, which is legally binding for its signatories. Additionally, IDPs are protected under general international human rights law and, in conflict situations, international humanitarian law. However, unlike refugees, IDPs do not have a specific legal status under international law, and there is no single organization with a global mandate for their protection. This has led to an ad hoc system, with national authorities bearing the primary responsibility for IDP protection and assistance, supported by international efforts when necessary.

With regard to those seeking safety outside of their countries of origin, Article 14 of the Universal Declaration on Human Rights (UDHR) explicitly recognizes the right to seek and enjoy asylum from persecution. The Convention relating to the Status of Refugees, 1951 (Refugee Convention) and the Protocol relating to the Status of Refugees, 1967 (Refugee Protocol) build on these principles to ensure specific protection for refugees. Refugee protection, therefore, is not merely a humanitarian concern; it concerns numerous other legal and human rights obligations grounded in international law. Consequently, all UN Member States share the responsibility to implement these interrelated humanitarian and human rights protections effectively.

Although the Refugee Convention does not explicitly mention sexual orientation and gender identity as grounds of persecution, the international human rights law framework clearly supports the validity of SOGI-based claims for seeking refugee status, as has been reflected and enforced in many national jurisdictions. Indeed, UNHCR as the authoritative source of doctrinal guidance on interpretation of the Refugee Convention, has affirmed in the Guidelines on International Protection Number 9: Claims to Refugee Status based on Sexual Orientation and or Gender Identity, SOGI-based persecution as legitimate grounds for asserting an asylum claim.

Most crucially, a critical foundational principle of international refugee law is the prohibition on refoulement (i.e. expelling, repelling or forcing away), which prohibits States from expelling forcibly displaced persons to their country of origin or to another country when there are substantial grounds for believing that the person would be in danger of being subjected to serious human rights violations. The principle of non-refoulement, widely recognized as customary international law, derives also from Article 33 of the Refugee Convention, and prohibitions of torture and other cruel, inhuman or degrading treatment or punishment under the UDHR, the International Covenant on Civil and Political Rights (ICCPR), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).

The Refugee Convention is supplemented by regional asylum systems such as the Common European Asylum System (CEAS), the Organisation of African Unity’s 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Convention) and the 1984 Cartagena Declaration on Refugees (Cartagena Declaration). While the CEAS explicitly recognizes SOGIas valid ground for asylum, the OAU Convention and the Cartagena Declaration do not. Nevertheless, many Latin American and African countries recognize SOGI-based claims in their national asylum procedures, drawing on broader human rights frameworks.

Thus, it is well established that individuals fleeing persecution, torture or cruel, inhuman or degrading treatment or punishment for reasons related to SOGI are eligible for international protection. However, there is significant inconsistency in the implementation of this principle and the protections afforded to LGBT individuals. UNHCR estimates that 37 UN Member States formally grant asylum to individuals on SOGI grounds, although due to State discretion in the grounds for granting asylum, the precise figure is unclear. The majority of UN Member States adjudicating asylum claims continue to unjustifiably fail in recognizing these protections, thereby considerably undermining the universal application of refugee law and related human rights protections.

Furthermore, among the UN Member States that consider SOGI-based asylum claims, LGBT forcibly displaced persons seeking international protection face a myriad of barriers in the adjudication of such claims. Refugee Status Determination (RSD) is the legal process through which national governments, or UNHCR in specific situations, determine whether an individual seeking international protection is considered a refugee under international, regional or national law. Arbitrariness in this process is not uncommon and, given the critical nature of RSD to accessing asylum, an inconsistent application of the refugee criteria in RSD processes can be highly detrimental to forcibly displaced persons seeking international protection. For instance, adjudicating authorities often place disproportionate weight on whether the country of origin has decriminalized consensual same-sex intimacy. As previously discussed, decriminalization alone does not determine the threshold of conditions of liveability and potential persecution for LGBT individuals.

Objectives

Call for Inputs

The prevailing global political climate is particularly concerning for LGBT forcibly displaced persons, with sharpening anti-gender rhetoric coalescing with xenophobia and rising anti-immigrant sentiment. Against this backdrop, the report seeks to support the collective commitment of UN Member States, UN agencies and other humanitarian actors to respect and ensure the human rights of LGBT individuals to live a life free from violence and discrimination. This includes guaranteeing their rights to seek and enjoy asylum, as well as addressing the needs of those internally displaced due to their sexual orientation or gender identity. To this end, the report will identify current trends, good practices and recommendations for States to conform and comply with international standards on asylum, refugee protection, and internal displacement. It will also explore ways to strengthen global responses to all forms of forced displacement related to real or perceived sexual orientation or gender identity, including through supplementary protection measures. By considering both cross-border refugees and internally displaced persons, the report will engage with a broader range of stakeholders, including UNHCR, OHCHR, and other relevant actors, to provide a comprehensive analysis of the challenges faced by LGBT individuals in various displacement contexts.

The IE SOGI invites all interested States, forcibly displaced persons, CSOs, international organizations, national human rights institutions, activists, academics, corporations, and others, to provide written inputs to the following questions for his thematic report. Inputs in relation to specific practices and policies in States or territories are welcomed, as are more general inputs concerning regions or the international community as a whole.

The following questions are provided as illustrative points of reference to guide the formulation of inputs. Respondents may choose to answer one, some, or all of the questions enumerated below. Please provide examples and relevant evidence (such as documentation, links to evidence of impact, etc.) to support the substantive inputs included in your submissions.

Key questions and types of input/comments sought

Suggested questions:

ON DRIVERS OF FORCED DISPLACEMENT / FOR REGIONS THAT LGBT PERSONS ARE COMPELLED TO FLEE

1. Are there drivers (root causes) of forced displacement in your region that impact the broader population? Which of these drivers, in your opinion, tend to impact LGBT persons disproportionately?
2. What are the prevalent drivers of forced displacement for LGBT individuals in your region?
   1. Such drivers could include, but are not limited to legal frameworks, government policies, violence and hate crimes, erosion or lack of anti-discrimination protections, social stigma and exclusion, religious and cultural intolerance and denial of healthcare.
   2. Are there specific instances of political scapegoating of LGBT individuals for electoral gains, or harmful rhetoric driven by malevolent actors, that have contributed to the forced displacement of LGBT individuals? Are certain communication channels more susceptible to being used for the spread of homophobic and transphobic messaging?
   3. In countries where legislation criminalizes consensual same-sex relations between adults, are there documented instances where the mere existence of such laws has created barriers to public participation for LGBT individuals or contributed to an increase in gender-based violence? If so, could you provide examples illustrating how these laws have been leveraged to justify discrimination, persecution, or other forms of violence?
3. How do other identities (race, ethnicity, disability, religion, etc.) intersect with SOGI to exacerbate risks for LGBT forcibly displaced individuals? Please provide examples of cases where intersectional discrimination played a role in forced displacement.
4. Is there any data, formal or informal, that indicates instances of violence or discrimination related to real or perceived sexual orientation or gender identity? If yes, how is this data collected, and are there any challenges or limitations in capturing the full extent of challenges faced by LGBT individuals?
5. What measures or initiatives are being implemented in your country to address violence and discrimination against individuals based on their sexual orientation or gender identity? Please include any relevant policies, programs, or community efforts aimed at redressing these challenges.

6. Are there any specific challenges that local LGBT rights organizations are facing in your region? This could include challenges with respect to registration, funding, regulation or prosecution. Are defenders of LGBT people’s human rights being targeted, scapegoated or penalized by governments on account of their work?

   IN TRANSIT AND UPON ARRIVAL IN HOST COUNTRIES

7. What forms of violence, discrimination, prejudicial treatment or other human rights violations do LGBT forcibly displaced persons experience during transit or upon arrival in host countries?
8. What is the protection environment for LGBT IDPs? Is access to protection and basic services adequate? What, in your experience, have been durable solutions are available to LGBT IDPs? In mixed movement contexts, is the level of access to protection and basic services for LGBT IDPs comparable to the level of access for LGBT asylum-seekers and refugees?
9. What specific measures can host countries, countries supportive of LGBT rights and international organizations implement to improve the protection of LGBT forcibly displaced persons, particularly in the areas of RSD, resettlement, and long-term integration? Do you have policy or practical suggestions for host countries that may afford forcibly displaced LGBT persons more agency in determining their future?
10. Are State-run and UNHCR registration systems, procedures, and frontline service providers that LGBT persons interact with during displacement gender-responsive and sensitive to SOGI-specific needs? Are staff of service providers (including UNHCR and other relevant UN agencies such as United Nations Population Fund, United Nations Development Programme, and International Labour Organization, IOM), humanitarian organizations (including senior management), and national social services trained and competent in addressing the specific concerns of forcibly displaced LGBT persons with whom they interact?
11. How do State asylum systems and related services in host countries address the challenges faced by LGBT asylum seekers and refugees, particularly in the contexts of criminalization or broader discrimination?
12. Are LGBT individuals who are forcibly displaced able to access formal or informal support systems?
    1. Do they have access to legal assistance to help navigate and articulate their asylum claims?
    2. What barriers exist for family reunification in host countries? Are there documented instances where the evidentiary requirements for family reunification have been excessively high?
    3. Are local LGBT rights organizations or CSOs in your country equipped and prepared to provide support in formulating SOGI-based asylum claims?
    4. Are LGBT support organizations who assist asylum seekers and refugees being penalized by their governments for aiding and abetting illegal migration?
13. What are the barriers to fair and efficient RSD procedures for LGBT individuals considering both State-conducted and UNHCR-conducted processes? Are certain subsets of the LGBT community more likely to receive protection than others?
    1. Have you found the RSD procedure to be discriminatory or invasive in practice? Please specify whether your experience relates to State-conducted or UNHCR-conducted RSD processes.
    2. What are the common reasons for the rejection of asylum claims for LGBT individuals? Are there differences in rejection reasons between State-conducted and UNHCR-conducted RSD processes?
    3. How do the barriers and outcomes differ between State-conducted and UNHCR-conducted RSD procedures for LGBT individuals?
14. What has been your experience with resettlement and complementary pathways for protection (e.g., humanitarian visas, community sponsorship, etc.)? In your view, should UNHCR focus on expanding resettlement and complementary pathways, or should greater efforts be made to strengthen, expand and expedite the existing international protection regime (such as RSD and legal stay, but also freedom of movement, and enjoyment of socio-economic rights) in the host countries?
15. Recognizing that protection of forcibly displaced LGBT persons requires multi-stakeholder and multi-agency coordination and collaboration, what are the steps that can be taken to foster and augment such collaboration in your region?
16. Do you have any examples of good practices, policies or interventions that:
    1. Have provided meaningful support to LGBT forcibly displaced persons in your country or region? (This could include legal aid, psychosocial support, housing, healthcare, and access to employment.)
    2. Demonstrate effective collaboration with LGBT CSOs in conducting outreach and providing safe, inclusive services to LGBT forcibly displaced persons?
    3. Could make frontline service providers, field offices and operational partners, including UN agencies and others, more gender-responsive and sensitive to SOGI-specific needs?
    4. Could enable the international community to aid forcibly displaced LGBT persons, while their asylum claims are being adjudicated?
    5. Could enable host States to be better supported to include LGBT forcibly displaced persons in their national social service systems and to permit LGBT forcibly displaced individuals to contribute to the host State’s society and economy?

How inputs will be used?

If you wish your submissions to be kept confidential, you are kindly required to make an explicit request in your submission. Otherwise, information may be published online, and may be referenced in the report.

Input/comments may be sent by e-mail. They must be received by February 7. Early submissions are strongly encouraged. Additional supporting materials, such as reports, academic studies, and other background materials may be annexed to the submission.