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Asylum Rights and Seeking Refuge from homophobic and transphobic persecution

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Thursday, November 17, 2011

Sharalyn Jordan, Simon Fraser University and Christine Morrissey, Rainbow Refugee Committee
Guest Contributors

This entry is part of the CFHSS’s VP Equity Issues series on issues related to LGBTQI2-S (lesbian, gay, bisexual, transgendered, questioning, intersex and Two-Spirited) peoples.

Currently no less than 76 countries criminalize same-sex sexual acts or gender variability. Many of these statutes can be traced to colonial imposition, specifically, the British penal code section 377. Direct criminalization and morality laws create the means for abuse of power by police and others in authority. Surveillance and threat is dispersed along networks of family, school and community. Homophobic and transphobic violence often occurs out of the public eye, and unlike war or larger conflicts, people experience this violence in relative isolation. In some cases, religious teachings and psychiatric diagnosis are used to shame and pathologize people who live transgressive sexualities or genders. Stigmatization as evil or mentally ill further isolates people.

These brief accounts below were shared by QLGBT refugees now living in Canada, as part of our research project Un/Settling. These accounts highlight some of the complexities of persecution based on sexual orientation or gender identity.

A young woman from Nigeria was told to marry a man who was twenty years her elder. She confided in her sister that she was attracted to women and could not marry this man. The sister told her parents. The young woman was kept locked up and beaten regularly by her father for over a month. Rumours spread around her town. Her church publicly denounced her. When she was allowed out, she was assaulted by a gang of young men and neighbors threw rocks at her.

A transwoman from Mexico was picked up by police while walking home in the afternoon. They threatened to charge her with prostitution if she did not perform sexual acts and pay them a bribe. Officers were regularly waiting outside her apartment, following and harassing her.

Gay men who have fled Sri Lanka report being picked up from gay cruising areas by police. They were detained and assaulted by police, and forced to pay a bribe for their release. The police returned to their homes monthly to extort more money, threatening to out them or beat them if they did not pay.

Our research suggests the global terrain of protection and persecution for QLGBT people is in flux and often paradoxical. As Louis George Tin has described in the Dictionary of Homophobia, Brazil hosts the largest Pride Parade in the world with over 3 million people celebrating. Yet Brazil also has the world’s highest reported rate of homophobic and transphobic murders. While South Africa recognizes same-sex marriage, human rights organizations there report ten cases a week of “corrective rape” targeting lesbians, most never investigated by police. QLGBT organizers in Poland have been targets of violence, with impunity or complicity from authorities, despite the human rights protections promised by European Union membership.  We have heard Bogota described by one man as a great place to be gay but, by another person who spent ten years on the run within Colombia trying to escape death threats, as a terrifying city to be gay. The first man was protected by his affluence, the second vulnerable because he was poor, and from an area controlled by drug cartels. Legal human rights protection does not translate into on-the-ground safety or access to state protection. Within the same country of origin, people’s vulnerability or safety varies considerably based on social class, race, religion, ability to “pass,” and social networks.

Queer Lesbian Gay Bi and Trans refugees that we know left their home countries because they were in danger, and many did not know that the risks they faced constituted persecution. Often it was only after they left their countries, by any means possible, that they learned that they could seek refugee protection. Asymmetrical im/mobilities – created by intersectional mobility exclusions based on racism, global north/south disparities, gender, and social class –  enable and constrain who is able to leave, how people migrate, and options for permanent status.

In their migration, QLGBT asylum seekers encounter immigration and border systems that enable and restrict mobility based on the priorities of global capitalism, neocolonialism, and post-9/11 notions of security. Canada, along with other Western countries, is using increasingly stringent measures to screen out potential asylum seekers.  According to Oxfam’s report, No Price Too High: The cost of Australia’s approach to Asylum Seekers, Australia has spent over a billion dollars – or a half million dollars per refugee – to detain and process asylum seekers off-shore.  Legislation before Canadian Parliament now would result in detention of potential refugees, including children, for a full year. Canada Research Chair Catherine Dauvergne argues in ‘Making People Illegal: What Globalization Means for Migration and Law’, that the punitive impact of measures like these is actually to make asylum itself illegal.

Undertaking an asylum application entails accessing and working within a refugee system that was not designed with lesbian gay bi trans or queer refugees in mind. In the early 1990s, the Geneva Convention criteria for refugee protection stated that, “membership in a particular social group” was interpreted in Canada, and by the United Nations High Commission on Refugees (UNHCR), to include those who face persecution based on their sexuality or gender identity. Yet, much work remains to be done to ensure that this protection is meaningful.

If a potential refugee makes it to a UNHCR office or one of the 21 countries that extend protection to QLGBT refugees, they must prove an often hidden and stigmatized identity, and their fear of persecution. QLGBT refugees have left countries where they have been under surveillance, arrested, extorted and, for some, imprisoned or tortured, because of their sexuality or gender identity. Survival has required vigilance, secrecy and conformity. The survival tactics do not necessarily disappear on departure. We know one man who spent 27 days in detention after making his way from Iran, through China, Indonesia and Japan, before working up the nerve to tell his duty counsel he was gay. Shame, fear and the impacts of trauma on memory interfere with people being able to make their case. Refugee decision makers find sexual orientation and gender identity cases some of the hardest decisions to make. Law professor Nicole Laviolette argues that no other kind of claim requires people to provide such intimate testimony about such deeply stigmatized parts of their lives. Without formal guidelines for adjudicators to follow, decision makers rely on their own background knowledge – often based in culturally encapsulated understandings of sexualities and genders – to assess the credibility of an applicant’s identity claim. QLGBT refugees are evaluated against expected narratives of refugee flight and Western narratives of LGBT identity that do not necessarily apply. Fair decisions are hampered by the lack of reliable information about on-the-ground conditions for QLGBT people.

Refugee protection is not yet meaningfully accessible for queer or trans people facing persecution. Simultaneously, the right to asylum is in jeopardy, internationally and in Canada, for all asylum seekers. QLGBT refugees are struggling to gain access to a protection system that is under resourced and under erosion. Bringing about refugee protection for QLGBT people facing persecution, preventing further erosion of the refugee protection system that exists, and envisioning just approaches to asylum will require creative and committed political, policy, social service, community building, cultural, and scholarly work.

The social justice risks are as significant as the potentials – as are spelt out in the research of scholars such as Jasbir Puar, Sara Ahmed, Vivien Namaste, and Vancouver activist/scholar Fatima Jaffer. Raising the problem of sexuality or gender based persecution internationally risks othering cultures, faiths, or countries as monolithically and irredeemably homophobic.  Moreover, we are mindful that presenting the need for QLGBT refugee settlement in Canada can entrench colonial narratives of rescue and binaries of developed vs. backwards or civilized vs. barbaric.  Writing, speaking and organizing around QLGBT refugee protection invites us into echoing homonationalist discourses that equate the West with progress and tolerance of QLGBT citizens with modernity. This homonationalism can ally dangerously with Islamophobia or xenophobia. As Fatima Jaffer explained at the July 2011 Salaam conference held in Vancouver, after 9/11 “I was being seen as not being queer and patriotic, not being Canadian in the way that it's being framed by the queer community.”

Post-Colonial Queer/Trans scholarship, antiracist organizing among QLGBT communities, QLGBT migrant organizing, and Queer and Trans intersectionality all play critical roles in interrupting these problematic discourses and their repercussions. Bringing postcolonial, antiracist, Trans and Queer perspectives into dialogue will enhance the community organizing, research, law and policy efforts to create meaningful protection for QLGBT refugees. Collaborations among community organizations working with QLGBT refugees and researchers are contributing to this important dialogue – Rainbow Refugee in Vancouver, AGIR in Montreal, and a number of groups in Toronto are part of this effort. As well, bringing the knowledge constructed through these collaborations into dialogue with policymakers, lawyers, service providers, human rights organizations, and the wider public is a critical step in the social justice agenda for QLGBT refugees.

Recently the two of us met with officers of Citizenship and Immigration Canada (CIC), to iron out specifics of how Queer/LGBT community organizations can participate in sponsoring refugees facing homophobic or transphobic persecution. Among the many details we pointed out included the problems with application forms asking for sex (male /female) and marital status. We also raised the issue that, while waiting for resettlement, in often precarious conditions, QLGBT refugees continue to face homophobic or transphobic violence. In particular, we drew attention to the interminably long, and dangerous, waits faced by Ugandans, Nigerians, and other Africans who apply for refugee protection in Nairobi, Kenya. As the Canadian Council for Refugees documents, the target for the Canadian processing centre in Nairobi remains 1000 people per year, despite a caseload of over 7000 people who have willing sponsors in Canada.

Advocating for migration rights for same-sex partners (LEGIT.ca) and refugee protection for QLGBT asylum seekers in Canada (rainbowrefugee.ca) has taught us a few things about negotiating our way around boxes that confine, and through systems that exclude. Working towards human rights protection for those persecuted for the sexualities or gender identities raises complex intersectional social justice issues that call for alliance building, interdisciplinary scholarship, dialogue, and critical reflexivity in our advocacy and research.

Sharalyn Jordan is an assistant professor in the Faculty of Education at Simon Fraser University and Christine Morrissey is with the Rainbow Refugee Committee. 

Category

Equity Matters

Tags

Lesbian/ Gay/ Bisexual/ Transgendered/ Queer/ Intersex/ Two-Spirited

Comments

I AM SO SORRY OF ALL THE VICTIMS INVOLVED..PRACTICALLY I AM SUFFERING FROM THE SAME ACT AND NOW I ESCAPED TO INDIA BY HELP OF A MOTHER WHO WAS ALSO BEATEN AND CHASED OUT OF HOME..I THOUGHT I WOULD GET HELP FROM MY RELATIVES WHO EVERY TIME KEEP ON TELLING ME HOW THEY ARE BROCK.I AM NOW FORCED TO GO BACK TO UGANDA BECAUSE LIFE IS SO HARD BUT THEN WHERE DO I START FROM..MY DADA THREATENED TO KILL ME AND MY NEIGHBORS DO NOT WANT TO SEE ME FOR THEY SAY I WILL AFFECT THEIR CHILDREN..SOME ONE HELP