In recent years, there has been an unprecedented wave of legislative reform around the globe to decriminalize consensual same-sex sexual activity—most recently in India, Botswana, Trinidad and Tobago, and Angola. Sexual orientation and gender identity have also recently been added to hate crime and anti-discrimination laws in Peru and parts of the Philippines. The media spotlight on this recent trend of legal liberalization suggests, at first glance, that the world is gradually becoming a safer place for lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons. But this narrative betrays the reality that persons with diverse sex, sexual orientation, or gender identity (SOGI) continue to face persecution in many regions, which forces many to flee their homelands.
Instances of homophobic and transphobic violence continue unabated or are on the rise in many countries that do not have laws criminalizing LGBTI identity, expression, or sexual activity—including in Azerbaijan, Russia’s Chechen Republic (Chechnya), Egypt, Indonesia, and Tajikistan. Similarly, transgender women continue to be disproportionately targeted in hate crimes across the Americas, including in countries where they, in theory, enjoy equal protection under the law.
This disjunction between, on the one hand, growing legal tolerance of persons with diverse SOGI and, on the other, abundant (if not proliferating) instances of homophobic and transphobic violence is often attributed to increasing polarization in global politics. As cosmopolitan norms spread at the legal-institutional level, they provoke a populist backlash at the grassroots level by groups that construe these advances for LGBTI persons as attacks on cultural norms. Persons of diverse SOGI thus find themselves increasingly targeted as scapegoats in a culture war between transnational human rights and particular groups’ claims to cultural self-determination.
This account, though helpful, is by itself insufficient. It neglects that the law is multivalent, and that the decriminalization of same-sex sexual activity does not signal the end of the legal persecution of persons with diverse SOGI. Cultural battles between human rights and traditional mores are part of the puzzle, but we must not be too quick to blame culture while exonerating the law. There is good reason to celebrate legal advances decriminalizing LGBTI identity, expression, movement, and intimacy; but we ought to remain cautious about the myriad conflicting meanings of such reforms.
This is one of the enduring insights of the United Nations Refugee Agency’s (UNHCR) 2015 report, “Protecting Persons with Diverse Sexual Orientations and Gender Identities,” which collates and analyzes qualitative and quantitative data from staff in 106 UNHCR offices worldwide to understand protection gaps facing LGBTI asylum seekers and refugees. The responses and analysis in the report emphasize that legal advances in the countries of origin of many LGBTI asylum seekers frequently do not translate into a decreased risk of persecution.
In countries where same-sex sexual activity is legal, the law is deployed to target LGBTI persons in three main ways: (1) by using laws proscribing various types of sexual crimes (but not explicitly same-sex sexual activity); (2) by using laws of general application; and (3) by denying access to legal remedies for violations of anti-discrimination laws.
In terms of laws proscribing sexual crimes, one respondent from the Middle East and North Africa noted that even where “there are no legislative provisions that criminalize same-sex relations, […] the protection of public morals and public order, which can be elastic concepts, are used as reasons to limit the rights of LGBTI persons.” In Africa, laws criminalizing “indecent exposure” or “violations of public morality” continue to be used to criminalize public expressions of same-sex affection. In the Asia-Pacific region, one UNHCR office pointed to an anti-bestiality law used to criminalize same-sex intimacy because its “parameters extend to ‘unnatural sexual activities,’” which courts have interpreted to include a wide array of activities beyond bestiality.
On the other hand, laws that do not pertain to sexual crimes but to broad public concerns (i.e., laws of general application) are at times disproportionately applied to target LGBTI intimacy, association, and movement. Laws proscribing sex work are often “applied more severely to LGBTI sex workers or applied in conjunction with other legislation focused on ‘unnatural sex acts.’” Two respondents presented instances in which child molestation and rape laws were “more severely applied when the perpetrator and the victim are of the same sex.” In Africa, one UNHCR office reported an instance of a marriage-focused law that was invoked to convict a couple of “gross indecency” after they affirmed their commitment in a symbolic engagement ceremony—even though same-sex marriage was not legal in the country. Respondents in four out of the five surveyed regions similarly noted restrictions on movement through laws that prohibit entry of LGBTI persons into the country.
Even in countries that have instituted legal protections from certain forms of discrimination against LGBTI expression, these protections might not be accessible. A UNHCR office in Europe highlighted instances where amendments to anti-discrimination laws to include discrimination on the grounds of SOGI “‘led to no significant changes in the law’s practical application’ in protection of LGBTI persons.” Some respondents likewise noted challenges for LGBTI survivors of sexual and gender-based violence who were unable to avail themselves of legal remedies because of fear of reprisal by authorities. One office in the Americas region reported that despite the absence of laws criminalizing same-sex sexual activity,
“parties to the armed conflict, former paramilitaries, and emerging armed structures disproportionately subject LGBTI persons to discrimination, homicide, torture, displacement, sexual violence, among other grave violations.’ Such discrimination, the respondent indicated, includes ‘anti-gay pamphleteering; beating and murdering LGBTI protesters and their defenders; […] the sexual exploitation of transgender individuals; and, police attacks.”
In light of these findings, legal frameworks should not be treated as broad proxies for the plight of LGBTI persons in a given country. As the report concludes, “no single mitigating factor, whether legal, social, or cultural, is fully indicative that LGBTI persons are free from persecution for the exercise of their fundamental human rights.” This means not only that non-state actors might persecute LGBTI persons despite legal advances or protections, but also that the law itself might be amenable to the de facto criminalization of LGBTI identity, expression, or intimacy even where it is not overtly proscriptive. Most importantly, LGBTI persons might have good grounds to seek asylum because of legal persecution due to their SOGI, even when originating from countries that do not proscribe same-sex sexual activity.
This conclusion has continued significance for asylum policy today, even in a period of advancing legislative protection for LGBTI persons globally. Insofar as asylum adjudicators treat country of origin information (COI) as a major factor in assessing whether a claimant is likely to have been persecuted—or to have had justifiable grounds for fearing persecution—they must remain cautious against overemphasizing the indicative value of the law in assessing LGBTI asylum claims.
This is especially important given that many who flee their homelands on account of their SOGI do not use identitarian vocabulary to describe their experiences of persecution. That is to say, the terms included in the LGBTI acronym might not be familiar to or reflective of the identities of many who claim asylum on the basis of SOGI-related persecution. The onus thus falls to a greater degree on asylum adjudicators to contextualize the experiences communicated to them by claimants with the help of relevant information on the country of origin. These experiences of persecution might include arrest, detention, and prosecution on the basis of laws that de facto criminalize LGBTI expression without invoking terminology that matches claimants’ own narrative descriptions. Attentiveness to the subtleties of how the law can be malleable to support discrimination against persons with diverse SOGI is critical to a fair assessment of their claims, particularly where claimants might not be positioned to directly highlight the link for adjudicators.
We cannot hope to address the root causes of SOGI-related forced displacement without addressing the legal frameworks that explicitly authorize discrimination against LGBTI persons. Yet at the same time, the law can deceive us if we treat it too literally. The law is creatively and flexibly deployed—at times to expand protection, and at times to contract it. This insight must remain central in adjudicating claims for refugee status for asylum seekers with diverse SOGI.
Nishin Nathwani is a Ph.D. candidate in political science at Yale University and previously worked for UNHCR in Switzerland, Lebanon, and Greece. His academic interests lie at the intersection of forced migration studies, legal studies, gender studies, and critical theory.