Gay Rights and the UN: One Step Back, One Step Forward

by Jason Dzubow on November 15, 2012

in Asylum Seekers, International, Legal Relief

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Sexual orientation is all about identity: Are you gay or straight or bi or trans or questioning or something else?  It seems that the United Nations has some identity issues of its own when it comes to LGBT rights.    

This past September, a “traditional values” resolution sponsored by Russia passed in the UN Human Rights Counsel, 25-15, with seven abstentions (the U.S. voted against).  The text of the resolution and a list of countries and their votes can be found here.  The resolution reaffirms that “everyone is entitled to the rights and freedoms… without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”  The basic problem is that this list purposefully omits the reference to sexual orientation.  Thus (as usual), the term “traditional values” is code for “anti-gay.”  

The UN has a split personality when it comes to gay rights.

While this particular resolution will probably have little effect, I fear it is an unfortunate bellwether of member states’ positions on LGBT rights and protecting LGBT refugees.  As an aside, my first job as a practicing lawyer was at Catholic Community Services in New Jersey.  I remember being surprised that the Catholic Church–which generally opposes gay rights–was assisting gay asylum seekers.  When you think about it, this is not entirely inconsistent: While the Church opposes gay rights, it also opposes persecution of gay people.  My concern with the UN resolution is that it might be a harbinger of something more sinister–the contraction of protection for people facing persecution on account of their sexual orientation (in 2008, the UN recognized that sexual orientation was a basis for protection under the Refugee Convention).  

But as you might have guessed from the title of this piece, the news from the UN is not all bad. 

Late last month, UNHCR issued new guidelines concerning claims to refugee status based on sexual orientation and gender identity.  The guidelines state:

A proper analysis as to whether a LGBTI applicant is a refugee under the 1951 Convention needs to start from the premise that applicants are entitled to live in society as who they are and need not hide that.  As affirmed by the position adopted in a number of jurisdictions, sexual orientation and/or gender identity are fundamental aspects of human identity that are either innate or immutable, or that a person should not be required to give up or conceal.

The guidelines recognize persecution by governments, society, and family members, and also note that laws criminalizing homosexuality can rise to the level of persecution.

The guidelines also make recommendations concerning refugee status determinations for LGBT applicants.  Most of the recommendations seem like common sense, but I think they are helpful and–given the sentiments of many UN member states concerning LGBT people–worth repeating.  The recommendations include:

- An open and reassuring environment is often crucial to establishing trust between the interviewer and applicant
- Interviewers and decision makers need to maintain an objective approach so that they do not reach conclusions based on stereotypical, inaccurate or inappropriate perceptions of LGBTI individuals
- The interviewer and the interpreter must avoid expressing, whether verbally or through body language, any judgement about the applicant’s sexual orientation, gender identity, sexual behavior or relationship pattern
- Specialized training on the particular aspects of LGBTI refugee claims for decision makers, interviewers, interpreters, advocates and legal representatives is crucial
- Specific requests made by applicants in relation to the gender of interviewers or interpreters should be considered favorably
- Questioning about incidents of sexual violence needs to be conducted with the same sensitivity as in the case of any other sexual assault victims

The U.S. government is ahead of the game in this matter.  In January 2012, USCIS (with help from Immigration Equality) issued a training module to help Asylum Officers with LGBT cases.

So it seems that the UN is of two minds about LGBT rights.  There is no doubt that many countries and societies violently oppress and murder people just because of their sexual orientation.  For their sake, I hope the progressive states continue to pressure the UN to move forward on LGBT issues.

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