Gay refugee rights: legislation and human rights law

Published: June 28, 2011

On 17 May 1970, homosexuality was removed from the International Classification of Diseases published by the World Health Organisation (WHO). On 17 May 2011, the 6th International Day Against Homophobia (IDAHO) was held. Yet, consensual acts between same-sex adults are criminalised in 80 member states of the United Nations and homosexuality results in the death penalty in six of these countries
 
On 17 June 2011, the United Nations Human Rights Council passed a resolution on human rights violations based on sexual orientation and gender identity. It upholds the principles of the Universal Declaration of Human Rights (UDHR). The International Commission of Jurists says the resolution builds on the treaty bodies, UN special procedures, and national courts that have repeatedly recognised that international human rights law prohibits discrimination on the grounds of sexual orientation and gender identity.
 
U.S. Secretary of State, Hilary Clinton said of the resolution: "All over the world, people face human rights abuses and violations because of their sexual orientation or gender identity, including torture, rape, criminal sanctions, and killing. Today’s landmark resolution affirms that human rights are universal. People cannot be excluded from protection simply because of their sexual orientation or gender identity."
 
In Australian refugee law, sexuality or specifically homosexuality, has been considered a protected identity under the category of "social group" since the 1992 Morato case. This was affirmed in 2003, when the High Court determined that two gay men from Bangladesh could not live openly as homosexuals in their home country, hence were members of a social group likely to face persecution.
 
The Australian Refugee Review Tribunal adopts the Refugee Convention definition of a refugee as an applicant that must first be outside his or her country of nationality. Secondly, the applicant must have a well-founded fear of being persecuted. Thirdly, the persecution feared must be for one of the five Convention reasons: race, religion, nationality, membership of a particular social group or political opinion. The applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country. The Refugee Convention refers to the 1951 Convention relating to the Status of Refugees and the 1967 Protocols relating to the Status of Refugees. As a party to both these international instruments, Australia has protection obligations to persons who are found to be refugees.
 
In 2010, the British Supreme Court found that gay and lesbian asylum seekers were considered under the refugee category of ‘social group’ and should not be expected to exercise discretion in their home countries to avoid persecution. In the landmark case British human rights lawyers argued that gay people have the right of sexual identity, in particular the right to associate and live openly with any partner of choice and not have to lie repeatedly about what is a core aspect of identity. This ruling was seen as important in halting deportation of asylum seekers whose sexual orientation had put them at proven risk of imprisonment, torture or execution.
 
In America, the recently introduced Refugee Protection Act (2011) seeks to strengthen the meaning of ‘social group’ with the ‘social visibility’ status that has become entrenched in U.S. case law. Unlike Australian and British interpretations, American refugee case law requires that a person from a ‘social group’ is only defined so if that ‘social group’ is visible. What this means for gay people who hide their sexuality is that American law does not recognise that they have a well-founded fear of persecution because they have hidden their identity. The 2011 Act introduced by Senator Patrick Leahy (Democrat, Vermont) seeks to overturn this. By reversing case law that requires groups to be ‘socially visible’ in order to get refugee status, this Act recognises that while gay refugees often live out their lives in hiding they still deserve protection from entrenched persecution.
 
The legal shifts to recognise homosexuality as the basis for a claim of refugee protection are emerging in response to some states that are criminalising or recriminalising homosexuality. In Africa, for example, homosexuality is illegal for gay men in 29 countries and for lesbian women in 20 countries.
 
Since 2009 the Ghana parliament had been considering a bill called for the death penalty for people who have convictions for homosexuality and are HIV-positive. Sadly referred to as the ‘Kill the Gays’ bill, one of its architects David Tetteh Assuming warns that the homosexual community in Ghana will face "mounting public anger in the form of physical attacks and outright death" if they do not stop what he calls "their evil deeds."

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