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International Journal of
Population Studies Recognition and protection of LGBTQI+ asylum

the threat of harsh criminal penalties faced by LGBTQI+ stereotyped – attributed to LGBTQI+ individuals (Jung,
individuals, it gradually became apparent that the category 2015; Millbank, 2004; Murray, 2014). This expectation
of “membership of a particular social group,” as provided overlooks the fact that some LGBTQI+ asylum seekers’
for in Article 1A(2) of the Refugee Convention, should characteristics and lived experiences may extend beyond
include LGBTQI+ individuals through a human rights the hegemonic frameworks applied to the analysis of
approach to the Refugee Convention. According to the LGBTQI+ individuals (Luibhéid, 2008), which are
current UNHCR guidelines, membership of a particular primarily focused on European or North American gay
social group is defined as: men. Ultimately, they must also satisfy their adjudicator’s
“[...] a group of persons who share a common understanding of LGBTQI+ sexuality and identity, as each
characteristic other than their risk of being persecuted, or application is reviewed by an officer with their own idea
who are perceived as a group by society. The characteristic of how a lesbian, a trans woman, an intersex person, or a
will often be one which is innate, unchangeable, or non-binary person, to illustrate, should behave (Millbank,
which is otherwise fundamental to identity, conscience, 2009; Tobler, 2014).
or the exercise of one’s human rights (United Nations “When testing the credibility of the claimant’s story,
High Commissioner for Refugees, 2012, p. 12).” immigration officials, and judges often assume that
all queer people engage in cross-gender identification
The first asylum claims based on sexual orientation or
gender identity appear to date from the 1990s, possibly or that they immediately engage a gay public life
on arrival in the new country by frequenting gay
due to certain consolidation of the LGBTQI+ movement establishments. Queer asylum seekers are, thus,
and the growing demand for rights. During this period, assumed to be “out” in a particularly recognizable
decisions were made that declared individuals as way associated with white middle-class Western-style
refugees or granted them asylum in the United States of commercialism and consumerism, and if they are
America, Canada, Belgium, France, Finland, Germany, not, their credibility is deemed severely questionable
the Netherlands, and the United Kingdom (LaViolette, (Jung, 2015, p. 312).”
2009; 2010). Since the 1990s, literature has significantly
contributed to the development of this theme. Regarding In summary, only those who conform to recognized
the persecution subject, Goldberg (1993, p. 606) listed forms of LGBTQI+ identity are declared refugees
possible ways in which LGBTQI+ individuals may be (Sabsay, 2012), marginalizing those who do not limit
persecuted, such as “harassment and assault, involuntary themselves to binary self-identification (Bruce-Jones,
institutionalization, punishment under laws that impose 2015). Furthermore, these subgroups are rarely explored
extreme penalties, including death.” The notion of a academically, as a consequence and a symptom of minor to
well-founded fear of persecution is often disputed due no attention paid in bespoke policymaking. Even some of
to the difficulty of assessing it in real-life events. This the recent European legislation on asylum and immigration
is compounded by the lack of comprehensive global exhibit bias or shy away from addressing sexual orientation
information and reports on LGBTQI+ persecution in and gender identity issues. They continue to use outdated
many countries. In addition, the criminalization of same- terms like “sex” instead of “gender” (Council of the
gender activity in a given state is also not consistently European Union, 2013) and overlook specific situations
interpreted as persecution, necessitating the use of data of vulnerability related to sexual orientation and gender
to support such a claim, which, as stated before, is rarely identity (Council of the European Union, 2011). This
at hand. The idea of continuity or the cumulative suffering seems to constitute a grave problem in meeting the special
that discrimination can cause is reinforced by Shah (2013). reception needs of LGBTQI+ asylum seekers, especially
Shah also emphasizes that individuals could have been those seeking refugee status based on sexual orientation
or gender identity. While there is some bibliographical
harmed in the future if they had not fled, which aligns with information available on LGBTQI+ asylum seekers
the current understanding of the UNHCR as outlined in today, institutions like the European Asylum Support
the Guidelines on International Protection No. 1: Gender-
Related Persecution within the context of Article 1A(2) of Office (EASO), for example, still do not, as per their
the 1951 Convention and/or its 1967 Protocol relating to website, provide training on vulnerable groups other than
children. Their focus, to date, remains solely on activities
the Status of Refugees (HCR/GIP/02/01) (United Nations related to children (European Asylum Support Office,
High Commissioner for Refugees, 2002a).
2022). All of these factors corroborate the pressing need
On the issue of credibility, the literature points out to systematically address LGBTQI+ issues in both public
that applicants are expected to present evidence and a discourse and legislative spaces to ensure their rights are
story that conforms to Western characteristics – usually acknowledged and carefully considered.

Volume 10 Issue 2 (2024) 105 https://doi.org/10.36922/ijps.0871