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Analysis & Background Stories on International Affairs

Are LGBTQ+ Refugees Protected in International Legal Treaties?

Article by: Stella D’Acquisto

This article was published as part of a collaboration with the Institute for Regional and International Studies National Resource Center (IRIS NRC) at the University of Wisconsin-Madison.

This article was published as part of a collaboration with the Institute for Regional and International Studies National Resource Center (IRIS NRC) at the University of Wisconsin-Madison.

“Imagine living in a refugee camp where you are too scared to go the toilet, or being subjected to sexual harassment on a daily basis in your host community because of your gender or identity.” – Catherine Murphy, Amnesty International

Trapped Between Worlds

International Human Rights Law is meant to protect the most vulnerable members of society through global governance. A person who is both a refugee and LGBTQ+ person is positioned at the intersection of an insecure refugee status and an isolated, often marginalized position due to their sexual or gender identity. They are afforded few state-level protections and murky recognition under International Human Rights Law (IHRL), particularly if gender- or sexuality-based persecution is the cause behind them fleeing a country.

Conceptions of Human Rights

The 1951 UN Convention Relating to the Status of Refugees laid out a framework for refugee rights, including a method for defining refugee status. The 1951 Convention does not include any requirement that states take in refugees; instead, it simply states the concept of “non-refoulement,” meaning that states cannot expel refugees who are documented residents without cause.

A 2012 report from the United Nations Office of the High Commissioner on Human Rights (OHCHR) established five core obligations states have for LGBTQ+ rights. They include: (1) to protect individuals from homophobic and transphobic violence; (2) to prevent torture and cruel, inhuman, and degrading treatment of LGBT persons; (3) to decriminalize homosexuality; (4) to prohibit discrimination based on sexual orientation and gender identity, and (5) to respect freedom of expression, association, and peaceful assembly.

Aside from the OHCHR report, the Yogyakarta Convention is perhaps the best-known document about human rights relating to gender identity and sexual orientation. It is a non-binding framework that calls for states to broaden the categories of refugees to include a “well-founded fear of persecution on the basis of sexual orientation, gender identity, gender expression or sex characteristics” as a reason to claim refugee status.

A Case Study: Jude Kasangaki

In 2020, The Netherlands planned to send Jude Kasangaki, his wife Anita Mavita, and their youngest child of seven back to Uganda. Kasangaki initially sought asylum because of fear surrounding discrimination and prosecution as an LGBTQ+ person and his work as an LGBTQ+ activist. Of note should be that “same-sex conduct” is punishable with prison time under Uganda law. Upon being granted refugee status, the family made a life for themselves in The Netherlands. But their resident permits expired.

The Kasangaki family’s fate now is unclear: The 2020 report is the most recent UN publication on the issue, and other media coverage of this story is limited. The conditions that created the need to flee have not changed in Uganda, but based on the above reasoning, the family may still have been deported. That this story was largely unreported, particularly regarding the family’s circumstances following the report, points to potential that even more stories like this may remain unknown.

The Netherlands’ IHRL Obligations

The Netherlands is bound by the principle of non-refoulement by multiple human rights documents, including the Prohibition of Expulsion or Return in the 1951 Refugee Convention and the International Covenant on Civil and Political Rights, which also includes the principle of non-refoulement. It is also a signatory to the Convention Against Torture, which prohibits states from “extradit[ing], deport[ing], expel[ling] or otherwise remov[ing] a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm.”

The Netherlands is also a signatory the aforementioned Yogyakarta Principles, as well as to the Convention on the Elimination of Racial Discrimination (CERD), and the European Convention on Human Rights. The CERD and the European Convention can both apply to racial or ethnic discrimination, but Yogyakarta presents an opportunity to look at the issue of discrimination based on sexual orientation. In their case against the Kasangaki family, The Netherlands makes no reference to the queer identity of Mr. Kasangaki, despite this being the stated reason for his refugee status. Instead, the focus of the authorities was on disproving the accusation of racial discrimination.

Fewer Protections Allow for Greater Discrimination

LGBTQ+ identity has fewer binding protections under international law than racial or ethnic identity, resulting in The Netherlands altogether avoiding addressing the alleged threat the Kasangaki family faced in Uganda. When classifying refugees, persecution based on being LGBTQ+ is grouped in with membership of a particular social group by the UNHCR. This large category is vague and therefore allows for queer identities to be potentially excluded from the classification. One particular social group identified is members of a political movement. Aligning LGBTQ+ identities with social groups such as political movements potentially ignores the importance that queerness can have to a person’s sense of self and lived experience and presents it as something that is chosen by a person rather than inherent.

Many arguments for LGBTQ+ rights under IHRL are currently classified as gender-based rights; in a 2016 report from Amnesty International, for example, the risks LGBTQ+ refugees face is described as gender-based violence. Although there is an interconnection and many people experience both, the marginalization of LGBTQ+ people is distinct from the marginalization that affects women. Recognizing this difference can help international actors to recognize more targeted rights which are not simply responses to the existing frameworks of IHRL

Overlooked and Underrepresented

There are currently no binding treaties protecting LGBTQ+ rights, and specific protections for LGBTQ+ refugees are highly limited. The 1951 Refugee Convention offers general protections against non-refoulement but puts no positive obligations on states to accept refugees and does not include LGBTQ+ people in their definition of “refugee.” Human rights scholars may instead reference the Yogyakarta Convention to define LGBTQ+ rights under international law, and often concepts of gender-based protections intended for cisgender women can be utilized for this purpose as well.

Nonetheless, IHRL can still be leveraged to help protect them as refugees if those international laws offer no loopholes that can allow for LGBTQ+ refugees’ rights to be compromised. Sources of human rights law that explicitly state and defend LGBTQ+ rights provide a backbone for the efforts of activists within and outside of international law.

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