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

3. UNHCR considerations on LGBTQI+ The LGBTQI+ asylum scholarship praised the 2008
individuals as a vulnerable social group Guidance Note as it was the first time UNHCR had
developed a specific and comprehensive document on
While the UNHCR has made progress, there are still LGBTQI+ asylum. The note highlighted that physical and
inaccuracies in how it addresses LGBTQI+ individuals. sexual violence, harassment, intimidation, and threats,
Since 2002, at least 51 years after the Refugee Convention among other factors, could be considered forms of
and 9 years after the first decision of the Canadian claim to persecution. These forms of persecution can happen when
refugee status based on sexual orientation, the UNHCR has access to fundamental rights such as education, health,
directly mentioned the inclusion of LGBTQI+ individuals and judiciary is denied. However, it is important to note
as part of a particular social group. This recognition has that the 2008 Guidance Note was considered incomplete
been further legitimized through the publication of and poorly discussed with stakeholders before publication.
several UNHCR documents that suggest guidelines to be LaViolette (2010) criticized the 2008 Guidance Note for
followed when dealing with these asylum seekers, namely, failing to correctly and thoroughly address the existing
the Guidelines on International Protection No. 1: Gender- correlation between sexual orientation and gender identity
Related Persecution within the context of Article 1A(2) for asylum purposes, as it primarily associated gender
of the 1951 Convention and/or its 1967 Protocol relating issues with lesbian women, neglecting the experiences
to the Status of Refugees (HCR/GIP/02/01) (“Guidelines of other LGBTQI+ individuals. The note also failed
No. 1”), the Guidelines on International Protection No. 2: to emphasize the difference between discrimination
“Membership of a Particular Social group” within the and persecution, inadequately addressing intersex and
context of Article 1A(2) of the 1951 Convention and/ bisexuality and offering limited insights into the protection
or its 1967 Protocol relating to the Status of Refugees provided by the state of nationality. Furthermore, the 2008
(HCR/GIP/02/02) (“Guidelines No. 2”), the 2008 UNHCR Guidance Note did not delve deeply into the topic of
Guidance Note on Refugee Claims Relating to Sexual LGBTQI+ asylum detention, a critical issue as LGBTQI+
Orientation and Gender Identity (“2008 Guidance Note”) individuals are particularly vulnerable within detention
– later updated and substituted by the Guidelines on centers. Identifying individual members of the LGBTQI+
International Protection No. 9: Claims to Refugee Status social group in such environments is challenging, leading
based on Sexual Orientation and/or Gender Identity to limited international law development and data on
within the context of Article 1A(2) of the 1951 Convention LGBTQI+ individuals within detention centers, as some
and/or its 1967 Protocol relating to the Status of Refugees prefer to conceal their identity. Within these detention
(“Guidelines No. 9”) – as well as the 2011 Handbook and centers, LGBTQI+ asylum seekers are susceptible to
Guidelines on Procedures and Criteria for Determining physical and sexual harassment, violence, verbal abuse,
Refugee Status under the 1951 Convention and the 1967 threats, social and physical isolation, and lack of access
Protocol Relating to the Status of Refugees, later updated in to medical services, hormonal therapy, and mental health
2019 (“Handbook”) (United Nations High Commissioner care. They may also be subjected to solitary confinement.
for Refugees, 2002a; 2002b; 2008; 2012; and 2019). Alternative measures to detention are recommended to
Guidelines No. 1, first mentioned in Items 14 – 17, describe address these challenges. The first international ruling
how discrimination could constitute a legitimate reason for on LGBTQI+ detention in an immigration context was
fleeing persecution and mention sexual orientation and sexual issued in 2012 by the European Court of Human Rights
practices as a reason one is persecuted. It also affirms that in the case of X v. Turkey, which found that segregating
“refugee claims based on differing sexual orientation contain LGBTQI+ detainees violated their human rights and
a gender element” (United Nations High Commissioner for hindered their access to detention center services (Tabak
Refugees, 2002a, p. 4). While this assertion is inaccurate, it & Levitan, 2014).
delineates the beginning of the stipulations in this sense. On It is also relevant to remember that not only LGBTQI+
the other hand, Guidelines No. 2 acknowledges that being asylum seekers who are persecuted on the grounds of their
part of a particular social group was being “invoked with sexual orientation or gender identity may face immigration
increasing frequency in refugee status determinations, with issues. LGBTQI+ asylum seekers who are persecuted on
States having recognized […] homosexuals, as constituting other grounds defined by the Refugee Convention may
a particular social group for the 1951 Convention” (as it also encounter immigration challenges. However, merely
may have implied “LGBTQI+” or “queer individuals”) identifying as LGBTQI+ individuals is sufficient to include
(United Nations High Commissioner for Refugees, 2002b, them in the LGBTQI+ asylum seekers’ social group,
p. 2) and provides stipulations and guidelines that should be which can trigger prejudice and vulnerability, as described
observed for such cases. above. Guidelines No. 2, with its purpose of discussing

Volume 10 Issue 2 (2024) 106 https://doi.org/10.36922/ijps.0871