Genocide and persecution on the grounds of sexual orientation: definitions and questions concerning international protection

Published: April 7, 2011

In the past two decades considerable progress, at least on paper, has been made in granting international protection to people persecuted because of their sexual orientation.  Starting in the early 1990s, individual western countries, such as the US, Canada, Australia, New Zealand, and several European countries began granting asylum to applicants basing their claims on persecution because of sexual orientation.  In 1993 the UNHCR stated that persecuted sexual minorities could qualify for international protection under the Geneva Convention as members of a social group.

In 2004, following the UNHCR recommendation, the European Commission of the EU, in its Qualifications Directive, mandated that people suffering persecution because of sexual orientation were to be protected under the criteria of the 1951 Geneva Convention as members in a social group, and in 2006, a group of highly regarded experts on international human rights law underscored the principles on the application of international human rights law in relation to sexual orientation and gender identity in great detail in the Yogakarta Principles.

In 2008 the UNHCR issued the ‘UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity,’ which incorporated the Yogakarta Principles and advised signatories to the 1951 Convention to grant asylum to persecuted LGBT as persecuted members of a social group. The UNHCR Guidance Note specifically addressed and designated as invalid many of the reasons for which EU countries had rejected LGBT asylum cases, even after the issuance of the Qualifications Directive and its incorporation into local asylum law (1).   Even though there are still serious problems in the handling of LGBT asylum cases in many Western countries (2), the understanding of the protection needs of sexual minorities fleeing persecution in many areas of the world, and the willingness of Western countries to grant international protection to such cases, has increased, and continues to increase substantially.

Of course, asylum and other forms of international protection are only last- ditch efforts to offer shelter to those whose lives have already been at least partially destroyed by persecution or generalized violence.  Reason would demand, therefore, that a concomitant effort be made to diminish the causes of this need to offer international protection, the persecution itself of LGBT, which in many countries is still state sanctioned. In the last two decades there still has been no substantial reduction in the persecution of sexual minorities worldwide, with the major problems occurring primarily in the Middle East and in Africa.  In addressing this chronic abuse of human rights, the response of the international community has been sorely wanting.

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