The 1951 Refugee Convention: Sexual Orientation and Gender Identity

For a backgrounder on the refugee definition, see “Defining ‘Refugees’—An Exclusionary Legacy.”

The 1951 Convention relating to the Status of Refugees, amended by the 1967 Protocol, defines a “refugee” as any 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.”

While grounds related to sexual orientation and gender identity (SOGI) are not explicitly listed in the text, some countries have incorporated SOGI-related persecution into religion, political opinion, and membership of a particular social group (PSG) grounds.

The History of SOGI in International Human Rights

Individuals seeking refugee status must show that they have been or are likely to be persecuted. In interpreting what human rights violations amount to persecution, the Universal Declaration of Human Rights (UDHR) is a starting point. This treaty is more than an international agreement—it is a bill of rights that is afforded to all people and that all political leaders must respect.

SOGI rights are not explicitly included in the UDHR. In Article 2, the UDHR states that people should not be discriminated on the basis of “race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Sexual orientation and gender identity are not explicitly referenced as prohibited grounds for discrimination.

For decades, SOGI advocates were not given access to human rights spaces. While the foundational human rights treaties were drafted in the 1950s-1990s, SOGI advocates were sidelined. As a result of this, many UN member-states maintained laws criminalizing queer relationships or expression and did not recognize same-sex marriage. In 1994, the UN Human Rights Committee, in a breakthrough move, weighed in on a human rights complaint from a gay man against criminal laws penalizing sexual expression in Tasmania, a state in Australia. The Human Rights Committee determined that Tasmania’s criminal laws were in breach of Article 17 (right to privacy) of the International Covenant on Civil and Political Rights (ICCPR) and recommended that Australia repeal the laws (Toonen v. Australia).

SOGI advocates started to gain ground in human rights gatherings. In 1995, advocates and NGOs for lesbian rights participated at the Fourth Conference on Women in Beijing. In 2005, at the Commission on Human Rights, New Zealand presented the first joint statement on behalf of 32 states condemning threats and discrimination on the basis of sexual orientation. In 2006, at the UN Human Rights Council, Norway submitted a joint statement on behalf of 54 states, urging the Council to monitor human rights violations based on SOGI rights.

Monitoring and development of SOGI rights was institutionalized at the UN when the Independent Expert on SOGI mandate was created in 2016. Yet, despite continued advocacy, LGBTQ+ people and rights have yet to be protected by a standalone, international human rights treaty.

International Human Rights Law and SOGI Rights

Many advocates and UN bodies have taken the view that existing human rights frameworks provide SOGI protection. They contend that as long as signatories (countries) interpret to afford maximum possible protection, these instruments are sufficient to address SOGI rights. For example:

The ICCPR protects the “right to life, liberty, and security of a person,” which should protect LGBTQ+ people from life-threatening violence and the death penalty imposed because of their sexual orientation and gender identity;
The ICCPR protects the “right to privacy,” which should prohibit laws that criminalize sexual expression;
The ICCPR protects the “right to marry,” which should protect same-sex marriage;
The International Covenant on Economic, Social, and Cultural Rights (ICESCR) protects the “right to physical and mental health,” which should allow the open expression of sexual identity; and
The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) directs states to modify the social and cultural patterns that contribute to structural discrimination, which should also apply to LGBTQ+ discrimination.

The UN High Commissioner for Refugees (UNHCR) recognizes that discrimination on the basis of “sex” and “other status” is prohibited by various human rights treaties. Thus, the refugee definition should be interpreted with the underlying assumption that discrimination on the basis of sexual orientation and gender identity is prohibited. UNHCR also cites the Yogyakarta Principles, a non-binding but highly persuasive document that establishes SOGI rights norms. Principle 23 states that “[e]veryone has the right to seek and enjoy in other countries asylum from persecution, including persecution related to sexual orientation and gender identity.”

Well-Founded Fear of Persecution

Traditionally, persecution is considered to involve a serious human rights violation and a failure of state protection. Discrimination itself does not always meet that standard. But a pattern of harassment and discrimination can meet that standard.

UNHCR guidance also states that criminal laws prohibiting sexual expression can violate the right to privacy and antidiscrimination clauses. A refugee applicant must still show that they have a well-founded fear of persecution based on the law, and refugee law is established that criminal prosecution is not persecution per se. However, if prosecution is arbitrary or if harsh punishments are imposed, criminal prosecution can amount to persecution.

Establishing a well-founded fear of persecution requires both subjective and objective elements. Not only does an individual have to state that they have a genuine fear of persecution, they must show that there is a reasonable possibility of future persecution if they were to return. Because anti-LGBTQ+ laws and discrimination are not per se persecutory, applicants have to develop a record of country conditions. For instance, the Ninth Circuit ruled that a Lebanese gay man did not have a well-founded fear of persecution in Abdul-Karim v. Ashcroft because a State Department document noted that Lebanon does not enforce anti-LGBTQ+ policies. But the same court a year later found that another Lebanese gay man had a well-founded fear in Karouni v. Gonzales because he developed an extensive record of anti-LGBTQ+ culture and practices, in addition to enforcement of state policies.

Grounds of Persecution

While SOGI is not explicitly one of the five accepted grounds of persecution in the refugee definition, UNHCR notes several grounds are relevant to a SOGI-related claim, including political opinion, religion, and membership of a particular social group (PSG). When sexual orientation is the subject of national laws and policy, a refugee may hold a political opinion that is the reason behind political persecution. SOGI expression may also be an affront to a particular religious belief, which may be the reason behind religious persecution. Finally, LGBTQ+ identities may constitute a PSG that is uniquely persecuted.

Nevertheless, individual refugee applicants face an uncertain battle. Everything about their claim rests on interpretation of the refugee definition and the procedural rights afforded to them.

LGBTQ+ claimants often plead for refugee status on the basis that their sexual orientation or gender identity makes them a member of a particular social group. The murky nature of the PSG categorization creates tension in its application. Applicants who present a refugee claim based on membership in a particular social group must first define the PSG. Any group could potentially be a PSG, but countries have set ‘tests’ for deciding whether or not a group qualifies. In the United States, a PSG must be based on an immutable or fundamental characteristic, be socially distinct, and have particularity.

U.S. courts have found PSGs valid in SOGI-related claims. In Matter of Toboso-Alfonso, the Board of Immigration Appeals (BIA) found that “gay men in Cuba” constituted a PSG. This BIA decision was marked as a precedential decision in 1994, formally opening the door to future SOGI-related PSG claims.

Nexus Requirement

However, some SOGI-related claims have been denied because they fail to meet the nexus requirement. The refugee definition requires that a protected ground have a causal link to an individual’s well-founded fear of persecution. Adjudicators have denied refugee status to LGBTQ+ individuals who have suffered harm if they do not adequately link the harm to their sexual orientation and gender identity. For instance, an Argentinian man stated that he experienced arbitrary detention, beatings, and harassment after going to gay clubs. Police officers repeated homophobic statements to him. Yet, the Third Circuit ruled that the persecution was not on account of his sexual orientation, but his activity of attending gay clubs.

Procedural Unfairness

As an initial matter, LGBTQ+ individuals presenting a SOGI-related refugee claim are forced to put their sexual orientation and gender identity on display. In trying to show that they meet the refugee definition, they must prove to an adjudicator that they are (or imputed to be) LGBTQ+, and that their testimony about their status and lived experiences are “credible.” A lack of awareness also means that LGBTQ+ refugees must educate adjudicators and present more supporting documents to overcome misconceptions and bias against LGBTQ+ identities. Having to prove LGBTQ+ status through evidence and testimony can be unduly burdensome for people who do not have the freedom to express their sexual orientation and gender identity.

Takeaways

As it stands, every element of the refugee definition poses a challenge to an individual with a SOGI-related claim. While inclusion of SOGI rights is not a prerequisite to granting SOGI-related refugee claims, it can reduce unnecessary barriers and promote consistency. Principle 23 of the Yogyakarta Principles promotes the inclusion of “sexual orientation, gender identity, gender expression, and sex characteristics” as a protected ground for refugee status. Principle 23 also establishes that self-identification should be accepted as a credible fact, that SOGI criminalization should be considered per se persecutory, and many more protections that are specific to SOGI-related claims.

UNHCR’s approach is rooted in a noble assumption. SOGI rights should be protected as a basic human right, and many existing human rights treaties can be interpreted more broadly to include them. The lack of formal SOGI rights inclusion in human rights treaties, moreover, begs a need to consult with LGBTQ+ individuals and advocates to ensure fairness.

USCRI, founded in 1911, is a non-governmental, not-for-profit international organization committed to working on behalf of refugees and immigrants and their transition to a dignified life.