Page 116 - IJPS-10-2

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

by some segments of society (Lee, 2013). Furthermore, also points out other theoretical means to promote societal
Donnelly (2013) affirms that states should tailor their change. Donnelly (2013) suggests that emphasizing the
actions to address the unique needs of different social hardships faced by LGBTQI+ individuals may serve as a
groups. However, Donnelly finds it difficult to point out catalyst for social change and increased tolerance. This
how this could be done when some individuals still perceive perspective is supported by Borrillo (2010), who argues
LGBTQI+ individuals as less deserving of basic human that the initial steps in promoting change should involve
rights. Other studies focus on the potential of affirmative demonstrating how obnoxious it is to discriminate against
policies, defined here as initiatives aimed at enhancing someone based on their sexual orientation, gender
the representation of women and marginalized groups in identity, or ethnicity. The pedagogical process should
educational, employment, and cultural environments from encompass educational institutions, including schools,
which these groups have been systematically excluded as well as professionals such as physicians, judges, and
(Fullinwider, 2018). Bucci (2013) posits that these policies police officers, given their close involvement in addressing
should aim at reforming the structures that perpetuate LGBTQI+ repression. Subsequently, the state should enact
inequality, protecting individual rights, and reorganizing specific criminal laws aimed at addressing LGBTQI+
economic and social spheres. Gomes & Silva (2003) further violence and discrimination while discouraging these
complement this concept by emphasizing the importance offenses (Borrillo, 2010). However, the theories developed
of rendering equality a tangible reality, not merely a legal by both authors seem a distant possibility with the growing
concept, which is only possible by eliminating all forms far-right movements worldwide (Martel, 2018).
of discrimination. The above literature is in line with We contend that another way to promote change
international law, as international conventions have urged involves reinterpreting old documents, thereby facilitating
states to adopt affirmative actions, or “special measures,” social development. Interpreting terms like “sex” in diverse
to rectify disparities and inequalities through targeted, instruments to include “sexual orientation and gender
temporary, and progressive measures (International identity,” for example, could have a positive effect at the
Labour Organization, 1958). The literature also advocates domestic jurisdiction levels. However, this interpretation
for “positive state action,” highlighting the responsibility of depends on political will, and it is important to note that
states to ensure equality among citizens and protect their most international bodies lack the authority to provide
rights and freedoms, even when these rights are under authoritative interpretations (Donnelly, 2013). A similar
threat from private parties (Bayefsky, 2016). However, opinion was given by the Committee on Legal Affairs
Bell (2003) regrets that state positive action remains a and Human Rights of the Parliamentary Assembly of the
supplementary step, whereas affirmative actions should Council of Europe. In document No. 12197, the committee
ideally complement non-discrimination legislation. advocated the mainstreaming of the term “gender” as the
Piovesan (2008; 2018) reinforces the notion that simply appropriate terminology for discussing one’s identity in
prohibiting certain behaviors is insufficient to guarantee official documents (Parliamentary Assembly of the Council
and create absolute equality for marginalized groups. of Europe, 2010). When considering the most suitable
Absolute equality depends on a coordinated effort to arena for society’s efforts to promote culture change,
introduce such policies while simultaneously prohibiting Beger (2000) believes that the legal sphere offers a more
exclusion. promising prospect than politics. He maintains that politics
remains predominantly biased toward heterosexuality.
In terms of LGBTQI+ affirmative actions, Bondarenko
(2014) observes that they have not yet reached the level of The legal sphere is essential for constituting, regulating,
development seen in ethnicity-based affirmative actions, and consolidating matters related to sexuality, thereby
which have been under discussion for the past 30 years. influencing matters of equality and social justice, as “a
Reed (2013) states that their aim should be the creation battlefield on which socially intelligible identity spaces
and human diversity are fought for, and, thus, also created,
of inclusive non-discrimination legislation. Despite their cemented, changed and re-institutionalized” (Beger, 2000,
limited scope and reach, policies aimed at benefiting p. 265). Last but not least, it is relevant to acknowledge
LGBTQI+ individuals present implementation challenges, the role that scholars and academia as a whole, as
primarily due to the fluctuating public opinion toward well as movements advocating for sexual freedom,
LGBTQI+ issues. These policies are available only in decolonization, queerness, and anti-racism, have played.
certain jurisdictions, usually within a broader scope of This is evident in instances like those in the German cities
inclusion policies.
of Berlin, Frankfurt, Hamburg, and Leipzig (Sweetapple,
Besides the importance of affirmative action in 2018), among other European urban centers, where they
addressing exclusion and marginalization, the literature have been instrumental in pushing for culture change,

Volume 10 Issue 2 (2024) 110 https://doi.org/10.36922/ijps.0871