Fleeing Homophobia Conference
VU University Amsterdam, 5 and 6 September 2011
Lesbian, Gay, Bisexual and Transgender (LGBT) Refugees Looking for Protection and Safety. Challenges in Refugee Status Determination and Living Conditions in Turkey.1
Giulia Cragnolini ABSTRACT The United Nations High Commissioner for Refugees (UNHCR) shows particular concern towards the protection risks of Lesbians, Gays, Bisexual and Transgender (LGBT) 2 individuals fleeing persecution, even though they represent a small part of the refugee claimants worldwide 3. As there is no place in the world where LGBT people can live without encountering problems 4, ensuring protection and safety for LGBT asylum seekers and refugees is very problematic. Indeed, due to their sexual orientation and gender identity, LGBT threaten established gender norms that rigidly shape every society and are rooted in prejudices. The first challenge for LGBT applying for international protection is represented by the refugee status determination (RSD) process, as this is still an evolving area of international refugee law 5. In particular, due to the intimate nature of LGBT claims and the difficulty that examiners can have to fully understand them, LGBT people might experience particularly hard time to have their instances recognized. The complexity of this process is explained in this paper with reference to UNHCR legal instruments, scholars contributions and legal decisions. The focus is mainly on gays and lesbians claims, as they constitute the majority, resulting in the more developed jurisprudence. Where information is available, limited reference is made to bisexual and transgender people, recognizing that specific studies are needed in the future 6. While hosted in the country of asylum, LGBT might continue to face discriminations in their daily life, as in the case of Turkey. After fleeing persecution in their countries they find themselves in an environment
1 This paper is a revised version of the writer's master thesis, realized to be presented at the Fleeing Homophobia International Conference, VU University of Amsterdam, 5-6 September 2011. 2 The wider group of LGBTI, including also intersex people, is not addressed in this paper. Indeed, it is not clear if these people should be grouped with LGBT claimants. While recently the UNHCR addressed the problems of LGBT and intersex people contextually (UNHCR, The Protection of Lesbian, Gay, Bisexual, Transgender and Intersex Asylum-Seekers and Refugees, Discussion Paper, 2010), in the 2008 UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity (Guidance Note) this category was not mentioned. On intersexuality in general see also: Cabral, Intersexuality is a human rights issue, at http://www.iglhrc.org/cgibin/iowa/article/publications/reportsandpublications/26.html. 3 UNHCR, The Protection, Ibid. See also: http://www.unhcr.org.uk/resources/monthly-updates/october-2010/lgbt.html 4 Amnesty International, Crimes of Hate, Conspiracy of Silence, Torture and ill-treatment based on sexual identity, Amnesty International Publications, London, 2001. 5 UNHCR, Guidance Note, Ibid. 6 These data are approximate as there is no systematic collection of the numbers and types of claims submitted by the asylum seekers in countries that recognize LGBT refugees. UNHCR, The Protection, Ibid.
hostile towards LGBT people that constitutes an "unsafe heaven" 7 for them. LGBT asylum seekers and refugees residing in Kayseri as well as non-governmental organizations (NGOs) confirm the harsh living conditions of this community in Turkey. Indeed, while LGBT asylum seekers are likely to find international protection from UNHCR, they are not able to find safety, both in physical and psychological terms. METODOLOGY The research related to refugee status determination practices derives from a six-month field experience with the Refugee Status Determination (RSD) Unit of the UNHCR Office (the Office) in Ankara and through extensive literature reviews of international refugee law. To explain effectively the challenges of the RSD process in LGBT cases, I referred to UNHCR standards 8 as well as to scholars' studies related to the most relevant national jurisprudence in this field, mainly from Canada and Australia but also from USA, New Zealand and the UK. Respecting the UNHCR confidentiality guidelines 9 and the security of the LGBT claimants, the refugee claims submitted to the Office are not presented in the paper. Nevertheless, this paper reflects findings and general issues I came across during my work. The information regarding the life conditions of asylum seekers and refugees in Turkey was collected by adopting a qualitative approach, conducting interviews with various parties involved in the treatment of LGBT cases in Turkey 10. Indeed, I interviewed some members of the Iranian LGBT community located in Kayseri (Central Anatolia), considering that the majority of the LGBT seeking refuge in Turkey reside in this city. Moreover, I interviewed the representatives of some NGOs in Turkey, namely Kaos GL in Ankara, Association for Solidarity with Asylum Seekers and Migrants (ASAM) in Ankara and Kayseri. My field research findings are also supported by relevant human rights reports on LGBT in Turkey 11.
1.INTRODUCTION Lesbian, Gay, Bisexual and Transgender (LGBT) people experience human rights violations all over the world. Serious episodes of violence against LGBT are very common 12 as well as discriminations in accessing economical, social and cultural rights 13. On the top of that, more than eighty countries still criminalize same-sex relations between consenting adults and at least seven contemplate death penalty as a punishment 14. As well, laws against public scandal, immorality or indecent behavior are arbitrarily used against LGBT. The reason why LGBT are mistreated worldwide, is that they challenge social gender norms assigning particular tasks to male and female at birth. As a consequence, the acceptability of LGBT people is a very delicate issue in every society. When severe human rights violations occur, LGBT people are forced to leave their countries to seek protection in another State. However, the living conditions in the State of asylum are not necessarily safe, as in the case of Turkey. This paper addresses the challenges faced by LGBT asylum seekers and refugees
The expression "unsafe heaven" is taken by the title of the report by Helsinki Citizens Assembly-Turkey and Organization for Refuge, Asylum and Migration, Unsafe Haven: the Security Challenges Facing Lesbian, Gay, Bisexual and Transgender Asylum Seekers and Refugees in Turkey, 2009 and updated version 2011. 8 In particular: Handbook on Procedures and Criteria for Determining the Refugee Status, 1992 (Handbook); Guidelines on International Protection No. 2: "Membership of a Particular Social Group" Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 2002, HCR/GIP/02/02, (Guidelines MPSG); Guidelines on International Protection: Gender Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 2002, HCR/GIP/02/01 (Guidelines GRP) and Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity, 2008 (Guidance Note). 9 See UNHCR internal documents Confidentiality Guidelines, UNHCR/IOM/71/01 and UNHCR/FOM/68/2001; UNHCR Confidentiality Of Official UNHCR Documents and Information, UNHCR/IOM/59/1988 and UNHCR/FOM/51/88; UNHCR, Procedural Standards for Refugee Status Determination under UNHCR's Mandate, 2003. 10 The interviews were conducted by the author in March 2011. 11 The reports were produced by: Helsinki Citizens Assembly-Turkey and Organization for Refuge, Asylum and Migration; Amnesty International; Human Rights Watch and Kaos GL Association. 12 About the violence against LGBT in OSCE countries see Human Rights First, Homophobia, Hate Crimes Survey, 2007. See also: O’Flaherty, Fisher, Sexual Orientation, Gender Identity and International Human Rights Law: Contextualizing the Yogyakarta Principles, Human Rights Law Review, 2008. 13 O’Flaherty, Ibid. 14 These countries are: Iran, Mauritania, Saudi Arabia, Sudan, United Arab Emirates, Yemen and Nigeria. At: http://www.sodomylaws.org/ . See also: O’Flaherty, Ibid.
looking for protection, i.e. the recognition of refugees status as a means to enjoy human rights, and for safety, in terms of physical and psychological peace out from their countries of origin. As LGBT issues are very controversial and there might easily be confusion about some related terms, the first part of this paper is reserved to the clarification of some basic concepts that are extensively used in the text. The second part of the paper describes the challenges that LGBT face in obtaining protection. After a brief presentation of the difficulties that LGBT applicants can have during the registration procedure, the refugee status determination (RSD) process is addressed with reference to the 1951 Convention Relating to the Status of Refugees. It is agreed that LGBT claims can fall under one of the grounds for persecution, typically membership of a particular social group, but some issues relating to the ground remain problematic. Furthermore, credibility concerns, central for every type of claim, become crucial for intimate testimonies as the ones of LGBT people. Not only there might be no other evidence apart from the applicant's testimony in support of his or her claim, but also psychological reactions typically play an important role. As well, the attitude and the understanding of the examiner, who might himself be trapped in prejudices and rigid gender schemas, can have a negative impact on the outcome of the case. Besides, well-founded fear of persecution in LGBT claims is discussed with reference to some controversial aspects. The applicability of the discretion requirement that implies the acceptability of demanding the applicant's cooperation in his own protection and the distinction between public and private conduct that traces the limits of the state intervention are described in the paper. Furthermore, the fundamental division of refugee law referring to persecution and prosecution and to discrimination and persecution are analyzed in relation to LGBT claims. In this context, the availability of human rights reports related to the treatment of LGBT in their countries of origin is crucial. The third part of this paper is related to the challenges that LGBT asylum seekers and refugees encounter in finding protection and safety in Turkey, an "unsafe heaven". The UNHCR refugee status determination process is described in relation to the role of UNHCR in Turkey and the experiences of the asylum seekers and refugees. The difficulties that the refugee LGBT community has in Turkey derive from the double condition of being foreigners seeking asylum and being LGBT. This double discrimination results in precarious living conditions, serious security concerns and psychological disorders. 2. DEFINING LGBT The confusion of terms and the widespread use of words with a very negative connotation to describe Lesbian, Gay, Bisexuals and Transgender people proves that this is a very controversial topic. In this paper, the UNHCR Glossary of Sexual Orientation and Gender Identity-Related Terms (Glossary) is adopted to clarify some terms that are very relevant 15. To frame properly the discussion about LGBT the distinction between sex and gender should be clarified. While gender "refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another" 16, sex is "a biological determination", implying the classification "as male or female at birth" 17. In addition, sexual orientation 18 and gender identity should be understood as two separate issues 19. Sexual
The Glossary adopts a sensitive approach towards the matter. It was developed according to the Media Reference Guide of the Gay & Lesbian Alliance Against Defamation (GLAAD, Media Reference Guide, at http://www.glaad.org/page.aspx?pid=373) and the 2006 Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, March 2007, "Yogyakarta Principles", http://www.yogyakartaprinciples.org/principles_en.htm). Glossary in UNHCR, The Protection of Lesbian, Gay, Bisexual, Transgender and Intersex Asylum-Seekers and Refugees, discussion paper, 2010. 16 Glossary in UNHCR, The Protection, Ibid. 17 Glossary, in UNHCR, The Protection, Ibid. For further discussion on the concepts of sex and gender see, among others: LaViolette, Gender-Related Refugee Claims: Expanding the Scope of the Canadian Guidelines a Critical Commentary, in International Journal of Refugee Law, 19(2), 2007. 18 Interestingly, the Glossary does not define the term sexual identity even though it is mentioned in the same UNHCR paper and in the Guidance Note. From these documents it could be inferred that the term is related to what living sexual orientation implies. UNHCR, The Protection, Ibid. par.21. See also another glossary stating that sexual identity "refers to how one thinks of oneself in terms of whom one is sexually and romantically attracted to, specifically whether one is attracted to members of the same gender as one's own or the other gender than one's own", at http://feminism.eserver.org/sexual-gender-identity.txt. 19 American Psychological Association (APA) at http://www.apa.org/topics/sexuality/transgender.aspx.
orientation refers to "each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with individuals of a different gender or the same gender or more than one gender "whereas gender identity refers to "each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms". Even though it is important to acknowledge the distinction between sex and gender, it has to be underlined that when it comes to RSD the two elements should be considered together 20. Indeed, LGBT are often victims of persecution because they do not conform to gender and social roles 21. Coming to the LGBT group, the fundamental UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity (Guidance Note) points out that the terms gay and lesbian should be used instead of homosexual, as the last one can be considered offensive due to its negative medical connotation. 22 I will use the term gay in reference to man and lesbian to woman 23, considering as such a person who is, "enduring physical, romantic and/or emotional attractions to people of the same sex (…)" 24. Bisexual is instead an individual who is attracted to both men and women 25. The Glossary refers to transgender as "an umbrella term for people whose gender identity and/or gender expression differs from the sex they were assigned at birth. The term may include but is not limited to: transsexuals 26, cross-dressers 27 and other gender-variant people. Transgender people may identify as female-to-male (FTM) or male-to-female (MTF). Transgender people may or may not decide to alter their bodies hormonally and/or surgically" 28. 3. LGBT LOOKING FOR PROTECTION Fleeing situations where they already experienced or would be at risk of experience serious violations of human rights, LGBT people seek protection in another country. If the applicant manages to present himself to the competent authorities, that might already be difficult, he will go through the process aiming at understanding if he meets the national or international standards establishing who is a refugee. The RSD procedure, located between the rigidity of the laws and the fast mutability of reality, is challenging for both the applicant and the examiner in every circumstance. Indeed, this procedure leads to a critical decision upon the life of an individual. The procedure is even more problematic for LGBT cases, due to the intimate nature of these people's claims and the role played by the gender dimension. Suzanne Goldberg's statement is very significant in this respect: "Asylum dealing with issues of sexuality presents a particular challenge because how a society understands sexuality is one of the most important ways in which a society defines itself, how a
LaViolette, UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity’: a Critical Commentary, in International Journal of Refugee Law, 2010. 21 See, among others: LaViolette, Sexual Orientation, Gender Identity and the Refugee Determination Process, Immigration and Refugee Board, Refugee Protection Division, 2010. This is concluded also by other scholars and different human rights reports as well as UNHCR. The latter underlines the link between gender identity and sexual orientation when declaring the complementary nature of the 2002 Guidelines on GenderRelated Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees and the Guidance Note. 22 The World Health Organization removed homosexuality from the list of mental illnesses only in May 1990 but some countries still consider homosexuality a disease. At : http://trans.ilga.org/trans/welcome_to_the_ilga_trans_secretariat/news/france_transsexualism_will_no_longer_be_classified_as_a_mental_illness _in_france. 23 However, the Glossary underlines that some women prefer to be referred to as gay or gay women. Glossary, in UNHCR, The Protection, Ibid. 24 Glossary, in UNHCR, The Protection, Ibid. 25 Glossary, in UNHCR, The Protection, Ibid. 26 The Glossary states that transsexual is "an older term that originated in the medical and psychological communities", but does not explain more. Transsexuals are usually considered the people that have undergone surgery in order to have their body matching with their gender. Walker, Sexuality and Refugee Status in Australia, International Journal of Refugee Law, 2000. See also, the American Psychological Association (APA): transsexuals "are transgender people who live or wish to live full time as members of the gender opposite to their birth sex [and] usually seek for medical surgery." At http://www.apa.org/topics/sexuality/transgender.aspx. 27 Cross-dressers are sometimes referred to as a transvestite. Cross-dressing is "the practice to wear clothes traditionally associated with people of the other sex." 28 Glossary, in UNHCR, The Protection, Ibid.
society understands who men are and what men are supposed to be, who women are and what women are supposed to be, is really at the centre of this discussion." 29 It is not surprising that sexual orientation and gender identity refugee claims started to be addressed only in the 1990s, relatively recently if compared to other cases 30, and this remains still nowadays "an evolving area of refugee law" 31 that needs to be further explored. 3.1 THE REGISTRATION PROCEDURE During their registration interview, which is the first step for the refugee to present his claim, LGBT applicants might not express their sexual orientation or gender identity. They might not know that they can claim asylum on this basis 32 or might not be at ease to disclose their sexual or gender identity to the interviewer. This discomfort can derive from different factors, including feeling of shame to declare themselves as LGBT due to the social stigma attached to it in the country of origin or insensitive behavior of registration officers. As well, in countries that criminalize same-sex conduct, LGBT might be prevented from applying for asylum in this terms 33. 3. 2 LGBT CHALLENGING THE REFUGEE STATUS DETERMINATION PROCESS In order to be recognized as a refugee according to international standards the applicant must meet the criteria of article 1.A of the 1951 Convention Relating to the Status of Refugees, defining as a refugee a person who: "(…) owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it." 34 When States started to recognize LGBT as refugees on the basis of the Convention, the issue was mostly the link to the Convention ground, whereas nowadays the problematic parts are more the credibility of the applicant's testimony and the establishment of a well-founded fear of persecution 35. 3.2.1 ESTABLISHING A CONVENTION GROUND According to the above-mentioned definition, the Convention presents five grounds for persecution, namely race, religion, nationality, political opinion or membership of a particular social group. Claims related to sexual orientation and gender identity have been addressed mainly under the last ground 36, as in 1995 UNHCR declared homosexuals eligible for refugee status as members of a particular social group 37.
Quoted in LaViolette, Gender related, Ibid. at p.18. Other cases were addressed before the Second World War. For instance, Germany, USA and Canada started to recognize lesbian and gay refugees under the membership of a particular social group in the late 1980s, early 1990s, whereas Australia and UK did it only in 1994 and 1999 respectively. Millbank, Gender, Visibility and Public Space in Refugee Claims on the Basis of Sexual Orientation, in Seattle Journal for Social Justice, volume 1, issue 3, 2003. 31 UNHCR, Guidance Note, Ibid. 32 See UNHCR Handbook, Ibid. par. 66: "Often the applicant himself may not be aware of the reasons for the persecution feared. It is not, however, his duty to analyze his case to such an extent as to identify the reasons in detail." 33 UNHCR expresses concern towards this problem and underlines the importance of training registration officers in LGBT matters in order to improve their skills. UNHCR, The Protection, Ibid. 34 States party to the Convention and/or the 1967 Protocol are obliged to apply at a minimum the Convention criteria in determining if a person is eligible for refugee status. In countries that are not party to the Convention and/or the Protocol, and in countries party to these instruments that did not establish the required procedures or have not established them adequately, UNHCR eligibility officers are in charge of the refugee status determination. UNHCR, Refugee Status Determination, Identifying who is a refugee, self-study module 1, Geneva, 2005. 35 Choi, Living Discreetly: A Catch 22 In Refugee Status Determinations On The Basis Of Sexual Orientation, 36 Brooklyn Journal of International Law, 241, 2010. 36 UNHCR, Guidance Note, at par. 32. 37 Choi, Ibid.
Nowadays, around eighteen States recognize people persecuted on the basis of sexual orientation and gender identity as a social group in conformity with the Convention definition38. Obviously, the evaluation continues to be done on individual basis, considering the personal circumstances and the particular country of origin situation. In 2002, clarifying the notion of membership of a particular social group39, UNHCR noted that "a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by the society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to the identity, conscience or exercise of one’s human rights." 40 The two practices adopted by States in identifying a particular social group, i.e. the "protected characteristics" or "immutability" approach and the "social perception" approach, were presented as equally authoritative by UNHCR 41. However, LaViolette reported an alarming trend in the USA, where a particular social group was recognized only upon satisfaction of both criteria 42. The emphasis on social visibility might result very dangerous for LGBT whose sexual orientation is not "visible" or who had to hide their sexual orientation in their country of origin in order to survive. Even though the protected characteristics approach seems to be the more used in LGBT cases 43, its application can result problematic due to different interpretations related to the nature of the social group. It is internationally recognized 44 that three social groups may be identified considering the immutability approach. The UNHCR Guidelines MPSG consider a group as defined by: an innate, unchangeable characteristic; a past temporary or voluntary status that is unchangeable because of its historical permanence; a characteristic or association that is so fundamental to human dignity that group members should not be compelled to forsake it 45. When sexual orientation is central to the claim, considering it as determined and involuntary might help adjudicators to be more confident about their decision as gays and lesbians would be discriminated and mistreated on the basis of a feature they cannot control, exactly as race, ethnicity or sex. 46 Nevertheless, this approach attaches a social stigma towards homosexuality, implicitly recognizing that if possible a person should try to avoid this condition 47. Also, it creates troubles for bisexuals, as proved by the tendency to recognize them as refugees as long as their problematic can be linked to homosexuals' behaviors 48. Moreover, the weakness of the immutability approach rests on the fact that there is no scientific agreement upon the mutable or immutable nature of sexual orientation. Some scientists believe that it is linked to genetics, brain conformation and hormones 49, as well as social growing environment. On this basis, some scholars continue to connect homosexuality to psychological disorders 50. Other scholars
Choi, Ibid. Indeed, this Convention ground is considered as the less detailed and "should be read in an evolutionary manner, open to the diverse and changing nature of groups in various societies and evolving international human rights norms". UNHCR, Guidelines MPSG, Ibid., par.3. 40 There is no requirement for the group to be cohesive and have a particular size. As well, not every member of the group must be at risk of persecution and the persecutor, as in other cases, can be a public or private actor. UNHCR, Guidelines MPSG, Ibid. 41 About the two approaches and UNHCR position see also: Hathaway, Foster, Membership of a Particular Social Group: Discussion Paper No. 4 Advanced Refugee Law Workshop, International Association of Refugee Law Judges Auckland, New Zealand, 2002 in International Journal Refugee Law, 2003, 15(3). 42 LaViolette, UNHCR Guidance, Ibid. Further discussion on this issue can be found in paragraph 3.2.2 about credibility. 43 UNHCR, Guidance Note, par. 32 44 Rehaag, Bisexuals Need Not Apply: a comparative appraisal of refugee law and policy in Canada, the United States, and Australia, International Journal of Human Rights 415-436, 2009. 45 These categories were elaborated from the landmark case Ward vs Canada (1993), where homosexuality was referred to as an innate or unchangeable characteristic. However, the case did not involve homosexuality, but categorized what was to be considered as particular social group. Canada (Attorney General) v. Ward  2 S.C.R.689. In 1992, In Re Inaudi, Canada recognized for the first time an Argentinean homosexual under membership of a particular social group reiterating that homosexuality was an immutable characteristic. Choi, Ibid. 46 LaViolette, The Immutable Refugees: Sexual Orientation in Canada (AG) v. Ward , 55 University of Toronto Faculty of Law Review 1, 1997. 47 LaViolette, Ibid. 48 Rehaag, Ibid. See also: LaViolette, Sexual Orientation, Ibid. with reference to the case Valozki v. Canada where the Federal Court claimed that the Courts should consider not only the homosexuality or heterosexuality of the applicant but also his bisexuality if relevant. 49 See: Coghlan, Gay brains structured like those of the opposite sex, 2008 and Savic, Lindström, PET and MRI show differences in cerebral asymmetry and functional connectivity between homo- and heterosexual subjects, 2008. See also: http://news.bbc.co.uk/2/hi/health/1025276.stm. 50 Rehaag, Ibid.
affirm instead that grouping sexuality in the categories homo, hetero or bi-sexual is too limitative 51. According to the American Psychological Association (APA): "Research over several decades has demonstrated that sexual orientation ranges along a continuum, from exclusive attraction to the other sex to exclusive attraction to the same sex. However, sexual orientation is usually discussed in terms of three categories: heterosexual (…), gay/lesbian (…), and bisexual (...)." 52 Even if the mutability theory proposed by the APA seems more flexible and thus more likely to encompass different tendencies, it could infer that individuals can voluntary change their orientation in order to avoid persecution 53. Thus, it does not guarantee success to refugee claims. Considering the limits of the immutable characteristics approach, scholars started to pay more attention to the applicability of the third definition of the Guidelines MPSG, the "human dignity approach" 54. Ignoring the reasons determining the person's sexual orientation, this approach focuses on the fact that "sexual orientation and gender identity are integral to every person dignity and humanity and must not be the basis for discrimination or abuse." 55 Recently, different jurisprudences 56 started to acknowledge this. In particular, in the progressive case Geovanni Hernandez Montiel v. Immigration and Naturalization Service 57, the USA Court of Appeals for the Ninth Circuit reiterated that "sexual orientation and sexual identity are so fundamental to one's identity that a person should not be required to abandon them" 58. The Guidance Note clearly states that "requiring a person to conceal his or her sexual orientation and thereby to give up those characteristics, contradicts the very notion of "particular social group" as one of the protected grounds in the 1951 Convention" 59. Even though the human rights approach seems more appropriate for LGBT 60 and it is used more frequently, the immutable characteristic approach is still largely applied. Transgender people are usually considered to constitute a particular social group. The Guidance Note clearly underlines that "transgender does not imply any specific form of sexual orientation" 61 but not always a proper distinction between sexual orientation and gender identity is made 62. For instance, UNHCR quotes the above mentioned Geovanni Hernandez-Montiel v. Immigration and Naturalization Service as transgender claim recognized under the membership of a particular social group 63 but this decision does not clearly distinguish between gender identity and sexual orientation. Indeed, the Court considers that Geovanni belongs to the group "gay men with female sexual identities", a subgroup of gays, and decides not to discuss if transsexuals constitute a particular social group 64. This certainly demonstrates the complexity of transgender claims, which need to be further addressed 65. Sexual orientation and gender identity claims can be analyzed not only under the membership of a particular social group ground but also under other grounds. It is well established that the Convention grounds are not mutually exclusive 66 and the reasons for persecution might overlap67. LGBT cases can
Rehaag, Ibid. APA, Sexual Orientation and Homosexuality. Answers to your question for a Better Understanding, at http://www.apa.org/topics/sexuality/orientation.aspx. 53 Rehaag, Ibid. 54 Rehaag. Ibid. See also the Guidance Note that acknowledges that both approaches are applied by different jurisdictions. 55 Introduction to and art. 9 of the Yogyakarta Principles. 56 In particular in Australia, New Zealand and USA. Rehaag, Ibid. 57 Geovanni Hernandez-Montiel v. Immigration and Naturalization Service, 225 F.3d 1084, US Court of Appeals, Ninth Circuit, 2000. See also Hinger, Finding The Fundamental: Shaping Identity In Gender And Sexual Orientation Based Asylum Claims, 19 Columbia Journal of Gender and Law, 2010. 58 The Court recognized also that the immutable and the human dignity approach are both applicable to LGBT claimants. Rehaag, Ibid. 59 UNHCR, Guidance Note, Ibid., par. 6 Cfr. following discussion about the discretion requirement when establishing well-founded fear of persecution, at page 6. 60 On the applicability of a human rights approach to gay and lesbians see: Daley, Kelley , Particular Social Group: a human rights based approach in Canadian Jurisprudence, 2000. 61 UNHCR, Guidance Note, Ibid., par.6. 62 LaViolette, Sexual orientation, Ibid. 63 UNHCR, Guidance Note, footnote n. 54. 64 See: Landau, Soft immutability’ and ‘imputed gay identity’: recent developments in transgender and sexual-orientation-based asylum claims, Fordham Urban Law Journal, volume XXXII, 2005. 65 UNHCR, Guidance Note, Ibid. 66 UNHCR, Guidelines MPSG, par.4.
involve political opinion broadly understood "to incorporate any opinion on any matter in which the machinery of State, government, society, or policy may be engaged. This may include an opinion as to gender roles, including an opinion related to differing sexual orientation." 68 In the Advisory Opinion by UNHCR to the Tokyo Bar Association Regarding Refugee Claims Based on Sexual Orientation, UNHCR asserts that this can be the case in particular in countries based on Islamic principles and norms. 69 LGBT claims can also be linked to religion when the expression of sexual orientation or gender identity can be considered as transgression of religious norms 70. Rehaag argues that homosexuality can be considered as a crime against religion specially in those countries where religious and civil institutions are not sharply divided 71. Also, it should be underlined that, as the membership of a particular social group, the political or religious opinion can be imputed72. In conclusion, when considering sexual minorities' persecution under membership of a particular social group, a human rights focus seems more adequate. Indeed, the categorization of LGBT as particular social group due to innate characteristics or social perception approach rests on imprecision and prejudices. A human right approach helps also to address bisexual and transgender claims more appropriately. Still, LGBT persecution on the basis of other grounds apart from membership of a particular social group needs to be further explored 73, considering carefully the gender and power balance in the applicant's country of origin. 3.2.2 DEMONSTRATING CREDIBILITY Being agreed that LGBT can fall under one of the Convention grounds, credibility remains one of the main issues in claims based on sexual orientation or gender identity 74, playing an increasing role in their rejections 75. Credibility is critical in every type of claim, but while different forms of verifications can be used for the ones based on political opinion, race, nationality or religion, for LGBT cases there might be no other evidence apart from the applicant's account of facts 76. The Guidance Note clearly states that selfidentification should be considered as indicator of sexual orientation77 and underlines that in absence of supporting information, the benefit of the doubt should be accorded if the applicant's account seems credible and non contradictory 78. Nevertheless, the evaluation of the credibility is still problematic and might be complicated by improper attitudes of the examiners 79. The belief that gay claims are easy to make and very hard to disprove affirmed in the UK and Australian jurisprudence is just an example of the skeptic attitude that can be adopted 80. Sexual minorities' claims are unique as very intimate experiences infuse all aspects of their testimonies 81. Thus, the first issue to be considered by adjudicators is the difficulty the applicant can have
UNHCR, Handbook, Ibid. par. 67. In particular for claims related to membership of a particular social group, cfr. par. 77. UNHCR, Guidance Note, Ibid. par. 30 and UNHCR, Advisory Opinion by UNHCR to the Tokyo Bar Association Regarding Refugee Claims Based on Sexual Orientation, 2004. 69 UNHCR maintains in this respect that homosexuals from Iran might have claims falling under political opinion. UNHCR, Advisory, Ibid. 70 UNHCR, Guidance Note, Ibid par. 31. See also UNHCR Guidelines on Gender Related Persecution, par. 25. 71 This would be again the case of the Islamic Republic of Iran. Rehaag, Ibid. 72 UNHCR, Guidance Note, Ibid par. 29. 73 UNHCR, The Protection, Ibid. 74 Choi, Ibid. 75 Millbank, ‘The Ring of Truth ’: A Case Study of Credibility Assessment in Particular Social Group Refugee Determinations, Oxford University Press, 2009. Millbank conducted a research on more than 1000 decisions related to sexual orientation recognized under membership of a particular social group. The decisions belonged to the Australian, UK, Canadian and New Zealand’s jurisprudence, from 1994 to 2007. 76 Berg, Millbank, Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum Claimants, 2007. 77 UNHCR, Guidance Note, Ibid., par.35. Interestingly, in part E about credibility the reference is mainly to sexual orientation and not to gender identity. This is not very appropriate, as not every LGBT has a claim based on sexual orientation. Still, is true that sexual orientation claims are more difficult to assess, whereas transgender claims are more "visible", thus easier to prove. Swink, Queer Refuge: A Review of the Role of Country Condition Analysis in Asylum Adjudications for Members of Sexual Minorities, 29 Hastings International and Comparative Law Review 251, 2006. 78 UNHCR, Guidance Note, par. 35. The benefit of the doubt principle is quoted from par. 196 of the UNHCR Handbook: “If the applicant’s account appears credible, he or she should unless there are good reasons to the contrary, be given the benefit of the doubt.” 79 The conclusions of the Expert Roundtable organized by UNHCR read: “A superficial understanding of what it means to be LGBTI as well as an absence of cross-cultural understandings of sexuality and gender can lead to negative credibility determinations.” UNHCR, Summary Conclusions conclusion: Asylum seekers and Refugees Seeking Protection on Account of their Sexual Orientation and Gender Identity, November 2010, par.17. 80 Millibank, The Ring, Ibid. 81 Berg, Millbank, Ibid.
in disclosing his or her story to the interviewer. The latter is an unknown person, who sits, more or less consciously, in a position of power 82. As for registration, feeling of shame, self-hating and embarrassment might prevent the applicant from presenting his or her sexual identity or gender identity, especially when this is considered taboo in his or her country of origin83. As a consequence, the applicant might try to avoid to base the claim on these basis or can submit it with a certain delay after arrival in the country of asylum 84. UNHCR clarifies that these events should not affect the claim’s general credibility 85. Furthermore, even if decision makers acknowledge as unavoidable the potential for contradictions in every kind of claim, the internal inconsistency of LGBT claims is still the main cause for questioning credibility 86. It should be taken into account that the applicant might not be able to talk linearly and coherently about his or her experience if his or her sexual identity or orientation has been or still is the cause of physical or psychological sufferance 87. In particular, when a person suffers from Post Traumatic Stress Disorder (PSTD) 88, normal human copy mechanisms try to avoid to the victim to recall the events and thus the person cannot decide consciously to tell his or her story 89. As a consequence, the examiners should be careful to interpret this as a lack of spontaneity and genuiness and should instead regard it as an indicator of the harshness of the trauma suffered. Indeed, past persecution resulting in a serious trauma may lead to PTSD 90. Given the high emotional charge of LGBT stories, it is extremely relevant to create a safe environment and establish trust between the parties since the beginning of the interview. The interview's atmosphere might have a critical impact on its outcome 91. In this context, also the sex of the interviewer can be determinant, as it can prevent the applicant from being at ease 92. However, in the majority of the cases, the interviewer and the applicant cannot communicate without the help of an interpreter. This obviously disrupt the communication 93 and might seriously affect the quality of the interview if the translation is done misinterpreting 94 or using improper terms 95. It is extremely challenging to establish the validity of the testimony in LGBT cases, as they are based on non visible characteristics. The issue might be even more complicated if the applicant lived hiding his or her sexual orientation in the country of origin and might explain his or her story for the first time in his or her life during the RSD interview. UNHCR underlines that if the applicant was living discreetly and never had any relationships in his or her country of origin, this should not constitute a negative credibility indicator but can instead prove fear of persecution96. On the other hand, even though the applicant is able to present some evidence such as photos, documented membership in active gay or lesbian communities and a partner, this is not always considered satisfactory 97. Some practices try to reduce the responsibility of the examiners, employing methods that pretend to be scientific and precise. For instance, invasive tests are used to measure the genital response to sexual stimuli, such as showing movies, photos or similar.
The power balance during the interview can be explained by the victim, aggressor and rescuer triangle. While the rescuer, i.e. the interviewer, holds more power than the aggressor, the flexibility of the triangle can shift him to the role of the aggressor, while the victim, i.e. the applicant remains in a situation of helplessness and powerless. Welkin, UNHCR training, Breaking Free, Finding Safety. Interviewing survivors of gender based and domestic violence, 27,28 January 2011, 14 March 2011, Ankara. 83 UNHCR, Guidance Note, Ibid. par. 38. 84 LGBT people might disown their sexual orientation or gender identity to themselves and to the others as a result of the internalization of the prejudices present in their societies. Berg, Millbank, Ibid. 85 UNHCR, Guidance Note, Ibid. par. 38. 86 Millbank, The Ring, Ibid. 87 Berg, Millbank, Ibid. 88 It is estimated that only about 5% of the people that experience sexual gender based violence develop afterwards trauma in a clinical sense, i.e. Post Traumatic Stress Disorder. Welkin, Ibid. 89 Explaining the traumatic events a person can re-experience them and this might result in a secondary traumatisation. Interviewers should be aware of the fact that the interview will harm somehow the person. Welkin, Ibid. 90 Walkin, Ibid. and Berg, Millbank, Ibid. 91 Berg, Millbank, Ibid. 92 UNHCR pays great attention to the sex of the interviewer and of the interpreter in registration and RSD interviews and recognizes the right of the applicant to ask for the sex he or she prefers. UNHCR, Procedural Standards, Ibid. 93 Choi, Ibid. 94 Millbank, The Ring , Ibid. 95 A similar case was quoted in the 2009 Helsinki report. Helsinki, 2009, Ibid. 96 UNHCR, Guidance Note, par.38 97 Berg, Millbank, Ibid.
Humiliating and degrading, these methods not only raise concern related to the respect of human rights and human dignity 98 but also are not proved to be effective scientifically 99. The interviewer's attitude plays a critical role when trying to establish "the truth". The interviewer should be conscious that his or her mind is shaped by the societal attitude in his or her own environment 100, as sexuality and sexual identity are at the core of the auto-determination of every society. At the same time, an incomplete or incorrect comprehension of how these concepts influence the social structure of the applicant's country of origin, might lead to a misinterpretation of the applicant's testimony 101. Scholars' researches prove that some interviewers adopt a very stereotypical and westernized evaluation model to determine the claimant's sexual orientation. Also, the possibility for the latter to be successful in his or her claim increases if he or she anticipates what the interviewer is looking for 102. The UNHCR Guidance Note warns that "in the assessment of LGBT claims, stereotypical images of LGBT persons must be avoided, such as expecting a particular “flamboyant” or feminine demeanour in gay men, or “butch” or masculine appearance in lesbian women" 103. Still, stereotypical images related to the applicant's physical appearance have been used extensively to establish that the claimant was not gay, lesbian or bisexual "enough". Although stereotypes are used less in the last years, the trend is far from being stopped 104. For instance, in an Australian case from 2007 two gay partners were considered to be friends and not lovers due to the "manners towards each others". 105 Similarly, in a 2003 Canadian case a gay applicant who described himself as effeminate was found "less effeminate" at the end than at the beginning of the interview 106. Also, a Colombian lesbian was rejected by the Convention Refugee Determination Division of Canada in a judgment stating that "the claimant presents as an articulate, professional, well-groomed and attractive young woman. Based on all these considerations, including the fact that she has yet to be target in Colombia as a result of her alleged physical attributes, the panel cannot conclude that the claimant's sexual orientation would be physically obvious to intolerant and bigoted segments of Colombian society." 107 The Guidance Note warns also that "a person should not automatically be considered heterosexual merely because he or she is, or has been, married, has children, or dresses in conformity with prevailing social codes." 108 Indeed, heterosexual experiences, especially for lesbians, are likely to be very common in certain societies. The applicants might be forced into heterosexual relations, including marriage 109. As well, he or she might decide herself to be engaged in heterosexual relations to try to hide his or her sexual orientation or to correct what she or he, influenced by the social attitude, feels as a wrong conduct. In a 2004 Canadian case a gay asylum seeker explained that he had a brief relationship with a woman as he wanted to "try to change himself" 110. In a 2006 Canadian case an Ukrainian lesbian declared that she was conscientious of her homosexuality since her teenage. Nevertheless, she decided to marry and failed in her three attempted lesbians relationships. As a consequence, the court ruled that the woman could not be considered lesbian, because it was not plausible that she had three unsuccessful relationships 111. In 2007 the Federal Court of Canada recognized that gays might need to live a double life 112. The Court overturned a sentence related to a gay married and father from Nigeria, rejected in first instance 113 considering that
UNHCR, The Protection, Ibid. These practices are still applied in the adjudication of asylum claims in Czech Republic. ORAM, Testing Sexual Orientation, a scientific and legal analysis of Plethysmography in Asylum & Refugee Status Proceedings, 2011. 100 Choi, Ibid. 101 Choi, Ibid. 102 Millbank, The Ring, Ibid. 103 UNHCR, Guidance Note , Ibid. par. 35. 104 Millbank, The Ring, Ibid. 105 SZKIS v. Minister for Immigration and Citizenship  FMCA 1223 (18 July 2007). 106 Re JWB  RPDD No. 141 (17 March 2003). 107 Millbank, while describing this claim asks a rhetoric question "What if a lesbian does not look like lesbians?" which I found significant to challenge every stereotype derived from physical appearance or mannerism. Millbank, Imagining otherness: refugee claims on the basis of sexuality in Canada and Australia, Melbourne University Law Review, 2002. 108 UNHCR, Guidance Note, Ibid. par. 35. 109 See, among others: Berg, Millbank, Ibid., and LaViolette, Sexual Orientation, Ibid. See also: par. 13 of UNHCR Guidance Note. 110 Khrystych case, , RPDDN. 339 (15 April 2004). 111 As well, the documentary evidence she submitted was not considered satisfactory. Re (X), TA5-12778, (17 October 2006). 112 Leke v. Canada  FCJ No. 1108 (26 July 2007). 113 MA6-02300  CanLII 61623 (IRB) (27 September 2006).
the fact that he was married and had two children was highly improbable for a gay men. As far as the distinction between bisexuality and homosexuality is concerned, the case of a bisexual claimant from Pakistan should be mentioned. The claimant used to have relations with women but never had a consensual sexual relation with a man in his country and he presented as proof of his bisexuality a longterm gay relationship during his detention in an immigration center in Australia. The Australian Refugee Review Tribunal rejected the claimant and disregarded the evidence provided maintaining that: "his relationship (…) is simply the product of the situation where only partners of the same sex are available and says nothing about his sexual orientation." 114 Every person has different emotional reactions, specially related to so delicate issues as sexuality. Thus, while some applicants might remember the discovery of their feelings as a negative event, others can recall it with happiness. In some of the latter cases, claimants that were aware of the dangers that this discovery could cause in their societies were disbelieved by the examiners. Indeed, the examiners were looking for a sense of shame or unhappiness, given what they interpreted as risks in the country of origin 115. In some instances, questionable western oriented methods were employed to understand if the person came out 116. Some examiners pretended the claimants, as LGBT individuals, to be informed about the gay or lesbian life in their country of origin or about international well–known gay or lesbian personalities 117. When instead the applicant denied his or her willingness to come out in the country of origin, the adjudicators supposed that he or she would have been willing to come out in the country of asylum. Again, in Australia and Canada some applicants were disbelieved as they could not answer about the local gay scene, including gathering places and groups 118. This was done without considering the specific profile of the applicants’ claims and the extremely personal way of living sexuality, both in heterosexuals and homosexuals cases. Also, asking questions about the coming out process, some examiners demonstrated their difficulty to distinguish between sex and sexuality. Sexuality has been considered as related mainly to sexual acts, ignoring the fact that it is part of the human identity and sex is just a minimal component of that. Giving too much weight to sexual acts, some examiners entered in very specific details during the interviews, interpreting the applicant's reluctance to answer as a negative credibility indicator. For instance, in New Zealand, an Iranian gay who was asked particular details about his sexual life, declared himself unable to talk about it out of embarrassment. The Tribunal held instead that his attitude derived from the lack of knowledge of the issue due to the fact that he was not really gay 119. The Guidance Note proposes an effective option to assess the credibility of these claims by noting that "enquiries as to the applicant’s realization and experience of sexual identity rather than a detailed questioning of sexual acts may more accurately assist in assessing the applicant’s credibility." 120 Even if it is recognized that the evolution process is more appropriate to decide on the applicant's credibility, the effectiveness of this method depends again on the parameters used by the examiners. Westernized psychological models proposed a linear evolution of sexual identity, from the discovery, during teenage, to the coming out afterwards, when a person should be able to speak about it. These standard models have been applied in some cases in Canada, Australia and the UK. 121. Also, these models assumed that once come out a person was ready to talk about his or her sexuality. Obviously, they ignored the context of origin of the applicant and his or her individual experience. Finally, particular credibility concerns derive from sur place claims. If in general these types of claims are very challenging because they can be the result of so-called "self-serving" activities, they become even more complicated when accounts are so intimate and difficult to prove as it is in the case of LGBT. The
RRT case 060635653, upheld on judicial review SZJSL. Berg, Millbank, Ibid. 116 As in the Guidance Note, the term come out will be used to refer "to the process in which an individual acknowledges and accepts his or her own sexual and gender identity and feels able to inform others about it". UNHCR, Guidance Note, note n. 36. 117 In some Australian cases asylum seekers were questioned about their knowledge related to of Oscar Wild. Millbank, The Ring, Ibid. 118 Millbank, The Ring, Ibid. 119 NZ refugee appeal n.74151, (2 December 2005). 120 UNHCR, Guidance Note, Ibid. 121 Berg, Millbank, Ibid.
UNHCR Guidance Note suggests an accurate analysis of the individual circumstances 122 as these cases would need a more accurate evaluation. In conclusion, it appears obvious that credibility in LGBT cases represents a serious challenge, both for adjudicators and for asylum seekers. The interviewer should take duly into account the applicant's psychological involvement and create a safe environment for him or her. As well, decision makers should avoid stereotypical images and fix westernized ideas of what sexual orientation means. 3.2.3 PROVING A WELL-FOUNDED FEAR OF PERSECUTION Even if the applicant is regarded as credible regarding his or her sexual orientation or gender identity, a well-founded fear 123 of persecution124 should be established in the specific case in order for him of her to be recognized refugee. Well-founded fear is considered to be the key element of refugee definition 125 and the examiners' failure to evaluate properly the circumstances of the case can easily lead to negative decisions. As for credibility, this might depend on cultural blindness and on the incapacity to image "otherness" 126, resulting in the application of westernized standards. Also, an analysis that ignores the gender perspective might seriously affect the outcome of cases involving sexual orientation127. In addition, a lack of documentation or improper use of it, might lead to the misinterpretation of the applicants' testimony. The Guidance Note specifies that LGBT can be persecuted for their identity and/or for acts associated with their status 128. Typical forms of LGBT persecution include physical and sexual violence, extended periods of detention, medical abuse, threat of execution and honor killings as well as forced marriage 129. It should be noted that transgender people are usually subjected to greater discrimination and persecution as they are more visible compared to other sexual minorities. 130 As well, they might face distinct types of persecution that can be linked to access to health or medical care or to an increased risk of exposure to harm if their gender identity is not legally recognized 131. Still, even if transgender people’s new identity is recognized this act does not always guarantee an exemption from persecution, as it is in Iran132. The Guidance Note underlines that violence against LGBT can be so harsh that it might, in some circumstances, amount to torture 133, or can be less harsh objectively but still amount to persecution depending on the individual circumstances and the applicant's response 134.
A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee sur place. UNHCR Handbook, Ibid. , par. 94. 123 The fear has a subjective and an objective dimension. The first is related to the state of the mind of the applicant, as derived from his or her personality and typically proved by the expression of the unwillingness to return to the country of origin. The second depends from the situation in the country of origin, as described by the available country of origin information. In assessing, with an holistic approach, the well-foundness of the applicant's fear, the applicant's experiences and background, as well as experiences of people with a similar profile should be taken into duly account. The well-foundness implies a degree of reasonability, i.e. a concrete possibility that the applicant will face harm upon return to his or her country. UNHCR, Handbook, Ibid. 124 The claimant fear must be related to persecution. Although there is no international definition of persecution, it is internationally agreed that threat to life, to freedom or other serious violations of human rights constitute persecution. Discrimination might as well amount to persecution in certain circumstances. The agents of persecution might be both State agents and private actors, but in the latter case it should be established that the State is unable or unwilling to protect his citizens. UNHCR, Guidance Note, par. 27. In cases of lack of State protection the Internal Flight Relocation Alternative is commonly not considered an option for LGBT asylum seekers. See UNHCR, Ibid, par. 33. 125 UNHCR, Handbook, Ibid., par. 37. 126 Millbank, Imagining, Ibid. 127 LaViolette, in UNHCR Guidance Note maintains that gender persecution is relevant in all LGBT claims. However, the same author in GenderRelated Refugee Claims, Ibid. specifies that not all claims linked to sexual orientation have a gender specific aspect. Indeed, sexual orientation might be considered in the country of origin also as mental illness, antirevolutionary behavior, crime against religion, western phenomenon, sexually deviant or immoral behavior. Still, gender and sexual orientation are rarely separated. 128 UNHCR, Guidance Note, foot note n.6. 129 UNHCR, Guidance Note, par. 13. 130 Swink, Ibid. See also Landau, Ibid. 131 UNHCR, Guidance Note, par. 16. 132 Iran authorized gender reassignment surgery since 1987 and is the second country in the world after Thailand for number of surgery performed. Waiting for the surgery, transgender receive documents allowing them to dress as women in public and after the surgery they are given new identity documents. Still, transgender and transsexuals continue to be treated with extreme harshness by public and private actors. Human Rights Watch, Together, Apart, 2009 . 133 UNHCR, Guidance Note, par. 14. 134 UNHCR, Guidance Note, par. 9.
The claimant might have already experienced persecution and thus be more likely to face it again but can also have never experienced it and be at risk in the future. The last case is very common for LGBT hiding their sexual orientation in the country of origin out of fear of persecution, or for individuals that left their countries for reasons not related to sexual orientation or gender identity but came out in the country of asylum 135. Sometimes, claims based on sexual orientation were rejected on the basis of the so-called discretion requirement 136. The decision was based on the assumption that if a person behaves discreetly or could "choose" to do so, he or she should not be considered in danger in the country of origin. The discretion requirement was justified by the Australian jurisprudence with the "reasonable expectation that persons should, to the extent that is possible, cooperate to their own protection, by exercising self-restraint such as avoiding any behavior that would identify them as gay." 137 As well, decision makers used to repeat that there was no human right to publicly embrace, flaunt, proclaim, parade or hold hands 138. In a 2003 case in the USA, a gay Mexican claimant was initially denied asylum on the basis of his masculinity 139. The judge did not question the applicant's homosexuality but justified the decision stating that he could not note in "his appearance, his dress, his manner, his gestures, his demeanor, his voice, or anything of that nature that remotely approached some of the stereotypical things that society assesses to gays" 140. Thus, unless he made "obvious himself" he would not have had a well-founded fear of persecution 141. In 2003 the Australian High Court declared unacceptable the discretion practice with a fundamental judgment 142. The case involved two Bangladeshi gays that were denied asylum by the Refugee Review Tribunal Australian due to their discreet conduct. The Tribunal acknowledged that it was impossible to live as open gays in Bangladesh, but noted that the applicants' discreet behavior prevented them from persecution in the past and similarly would prevent them from persecution in the future. The High Court rejected this approach, stating that the discretion requirement is unacceptable and would denaturalize the aim of the Convention143. The Guidance Note explicitly states that "being compelled to forsake or conceal one’s sexual orientation and gender identity, where this is instigated or condoned by the State, may amount to persecution." 144 As in cases involving other fundamental identity issues, such as political opinions, beliefs or nationality, an applicant cannot be asked to avoid the harm simply denying his identity 145, as a hidden right cannot be considered a right 146. Moreover, asking a claimant to act discreetly would support the same aim of the agents of persecution 147. The decision maker would impose on the applicant a conduct that only the applicant himself is entitled to choose 148. In conclusion, the rationale behind the discretion reasoning implies a very limitative and homophobic attitude that regards the expression of sexual orientation and
UNHCR, Guidance Note, par. 23-24. Hinger, Ibid. notes that the discretion requirement was applied specially in early cases in the 1990s, but this trend continues also nowadays. However, according to Walker, Sexuality, Ibid. the majority of the countries in the world does not apply the discretion requirement. LaViolette, in Sexual Orientation, Ibid. notes that the discretion requirement has not been very much applied in Canada. 137 Millbank, From Discretion to Disbelief: Recent Trends in Refugee Determinations on the Basis of Sexual Orientation in Australia and the United Kingdom, the International Journal of Human Rights, 2009. 138 Millbank, Gender, Ibid. 139 In Re Soto Vega, n. A-95880786, USA B.I.A. (27 January 2004). For a commentary see: Hanna, Punishing Masculinity in Gay Asylum Claims: case comment, in The Yale Law Journal, vol. 114: 913, 2005. For similar cases from Canada see: LaViolette, Gender Related, Ibid, at p. 28. Particularly interesting the judgment W.R.O. (Re) 2000 CRDD, n. 284 (QL) ., where a Bulgarian gay was denied asylum due to his masculinity, confirmed also by his partner W.R.O. (Re) 2000 CRDD, n. 284 (QL) . 140 In Re Soto Vega, Ibid. 141 At the end of the long appeal proceeding, the initial judgment was overturned and the applicant was granted refugee status in 2007. For a brief account of the procedural evolution. See: http://www.lambdalegal.org/in-court/cases/soto-vega-v-gonzales.html 142 Appellants S395/2002 and S396/2002 v Minister for Immigration and Multicultural Affairs (2003), 216 CLR 473, Australia. On this cases see Kendall who recognizes the importance of the High Court sentence but concludes that this does not guarantee enough equality. Kendall, Lesbian and Gay Refugees in Australia: Now that ‘Acting Discreetly’ is no Longer an Option, will Equality be Forthcoming, International Journal of Refugee Law 15(4), 2003. 143 See also the similar case HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department  UKSC 31 (7 July 2010). 144 UNHCR, Guidance Note, Ibid., par. 12. 145 UNHCR, Guidance Note, Ibid. par. 25. 146 UNHCR, Guidance Note, Ibid., par. 25, quoting the Immigration and Refugee Board of Canada. 147 See, among others, LaViolette, UNHCR Guidance Note, Ibid. and Millbank, Gender, Ibid. 148 Actually, the choice to be more or less visible might be very relative for LGBT and varies during life and according to the circumstances. Millbank, Gender, Ibid.
gender identity as limited to the private sphere. The "proper place of homosexuality", as Choi calls it 149, brings to the fundamental distinction between private and public sphere of action. Some adjudicators, once more, applied rigid western standards to distinguish between the applicants' public or private conduct. This resulted in rejections of claims because of being typically "too private" for lesbians or "too public" for gays150. In general, lesbians are more likely to face persecution in a private setting, i.e. at home or at work and by members of the family or of the community, whereas gays encounter more frequently persecution in public places, i.e. streets, parks, from public actors, i.e. people linked with the State 151. Lesbians experience forms of persecution that might be similar to other LGBT, but carry also a particular aspect, considering that their persecution is usually the result of a complex intersection between sexual orientation and gender issues 152. A disproportionate balance of these two aspects can result in superficial and partial decisions. Sometimes adjudicators gave too much attention to the gender aspect, as linked only to biological sex and not to sexual orientation 153. Even though it is true that lesbians are subjected to forms of violence that are very similar to heterosexual women, as sexual or sexualized form of assault, their identity as lesbians characterize their persecution as specific. Millbank describes perfectly lesbian rape as a "sexualized from of violence", used as a punishment for their sexual and gender non conformity 154. Most of the time, however, lesbians claims were not addressed in a gender perspective and were often regarded as "merely private". In a 1999 Australian claim of a Bolivian lesbian 155, for instance, the woman was subjected to verbal and sexual harassment by the men in her neighborhood, who were pushed to do so by a male relative of her, with the intent to cure her sexual orientation. Even though the tribunal acknowledged the hostile attitude towards gays and lesbians in the Bolivian society, the applicant's claim was rejected because the perpetrator was inciting violence only against her and not towards gays or lesbians in general. Thus, the matter was a familiar one and was not related to the governmental attitude 156. A gender perspective in lesbian claims was also absent when the focus was on the public conduct. The adjudicators were ready to apply their prejudgments linked to the proper space of sexuality, emphasizing the legitimacy of the punishment as opposed to the possibility of persecution157. As mentioned above, claims typically related to public conduct involve gays. There again, the fundamental refugee law distinction between persecution and prosecution 158 becomes blurred. In some cases where gays were detained and mistreated because they were found having sexual intercourse or intimate attitudes in public places 159, the tribunals maintained that the authorities' reaction did not depend on the victims' homosexuality per se. They held instead that it derived from the claimants' inappropriate sexual behavior, as it would have been for heterosexuals 160. In doing so, the adjudicators compared the situations of the country of asylum with the one in the country of origin stating that a couple having sexual intercourse in a park might have faced "much more serious" sanctions in Australia than in China 161. As for other cases, the Australian adjudicators proposed in general the discretion requirement, supporting the
Choi, Ibid. Millbank, Imagining, Ibid. 151 Neilson, Homosexual or female? Applying gender-based asylum jurisprudence to lesbian asylum claims, in Stanford Law and Policy Review, 2005. 152 UNHCR, Guidance Note, par. 15 153 At the beginning the Australian adjudicators recognized lesbian claims as merely related to violence against women. Millbank, Gender, Ibid. 154 Millbank, Gender, Ibid. Cfr. also discussion at p.19 LaViolette, Gender related, Ibid. 155 RTT Reference N. 98/23425, April 1999. 156 Millbank, Gender, Ibid. 157 Millbank Imagining, Ibid. 158 UNHCR, Handbook, Ibid., par. 52- 60. 159 Cfr. the case of Mr Gui (RRT Reference N.97/14768, 29 April 1998) , a Chinese gay who was arrested with his partner when they were kissing and embracing in a park. He was detained by the police for three months, kicked, bashed and harassed by them. He was denied refugee status considering that the arrest and detention did not constitute persecution as the applicant conduct was simply unacceptable according to the Chinese cultural norms. For a commentary: Millbank, Imagining, Ibid. 160 Millbank, Imagining, Ibid. 161 RRT Reference N.98/25853 and N98/25980, 11 May 1999.
prohibition of having sexual intercourse in public and forgetting to balance the proportionality of the punishment 162. Eventually, they recognized the legitimacy of sexual expression in public places not including sexual intercourse, only if it was the only means to have intimate sexual relations in private 163. It can be concluded that for gays and lesbians asylum seekers, the homosexual expression is acceptable only privately, as it is also is in western societies 164. Indeed, the level of tolerance is fixed also in western countries and is established by gender norms. The distinction between discrimination and persecution is also crucial in LGBT claims 165. While it is recognized that sexual minorities are entitled to enjoy fully human rights without discrimination166, discrimination against this group continues to be widespread in the world 167. Still, not every human rights violation amounts to persecution but discrimination does amount to persecution, singularly or cumulatively, when it leads "to consequences of a substantially prejudicial nature for the applicant." 168 These consequences can derive from the denial of access "to normally available services, in private life or workplace, such as education, welfare, health and the judiciary" 169. When considering if discrimination amounts to persecution, the subjective psychological and emotional reaction of the applicant 170 as well as the social and governmental attitude towards sexual orientation and gender identity in the applicant's country of origin 171 should be taken duly into account. Furthermore, the distinction between discrimination and persecution is increasingly determinant in assessing LGBT claims 172. Indeed, the improvement of human rights conditions for sexual minorities in many countries may lead the examiners to decide that the harm does not amount to persecution but simply to discrimination 173. Sometimes, the creation of sexual minorities organizations or the adoption of progressive legal reforms by the government, has been superficially considered to mitigate the risk of persecution 174. At the same time, if the applicant's treatment in the country of origin is similar to one he or she would receive in the country of asylum, the situation is not considered persecutory 175. The reason behind this attitude is that sexual minorities are an issue in every country. Thus, this is instrumental to the maintenance of the distinction homosexual-heterosexual as much as to the paradigm of heterosexual superiority 176. Similarly, in some Canadian decisions the level of democracy of the applicant's country of origin has been considered as an indicator of the availability of State protection 177. This approach can be extremely dangerous when the availability of State protection or the absence of State persecution is based on the lack of provisions criminalizing homosexuality. The Guidance Note warns that even though
See: UNHCR, Handbook, Ibid., par. 57: "a person guilty of a common law offence may be liable to excessive punishment, which may amount to persecution within the meaning of the definition". See also: UNHCR, Guidance Note, Ibid., par. 19 : "In some circumstances, one cannot exclude that even relatively lenient punishment can be considered disproportionate and persecutory. " 163 See RRT Reference N. V95/03527, 9 February 1996, where a Polish gay was granted asylum. The applicant was beaten twice when he was walking along beats looking for a man. The first time he was arrested, detained and bashed by the police, the second he was beaten by plainclothes who claimed to be policemen. The Court recognized that attending those dangerous places was the only way for him to assure the expression of his sexual identity in a society like Poland. 164 Millbank, Imagining, Ibid. 165 UNHCR, Guidance Note, Ibid., par. 10. 166 UNHCR, Guidance Note, Ibid., par. 9. See in this respect also the fundamental decision of the UN Human Rights Committee in the 1994 case Toonen vs Australia, that recognized that the non discrimination provisions related to ICCPR included also sexual orientation. See also: Saiz, Bracketing Sexuality: Human Rights and Sexual Orientation - A Decade of Development and Denial at the UN, Working Papers, N.2, 2005. 167 Amnesty International, Ibid. 168 UNHCR, Handbook, Ibid. par. 54. 169 UNHCR, Guidance Note, Ibid., par 11. 170 UNHCR, Handbook, Ibid. par. 55. 171 UNHCR, Guidance Note, Ibid. par.10. 172 This is true especially for Canada since 1998. LaViolette, Sexual Orientation, Ibid. 173 On this basis Canadian adjudicators have refused some claims specially from several Latin American and East European Countries. LaViolette, Independent human rights documentation and sexual minorities: an ongoing challenge for the Canadian refugee determination process, International Journal of Human Rights, 2009. 174 LaViolette, Sexual Orientation, Ibid. 175 Hinger, Ibid, at p.12 underlines this trend in the USA decisions quoting Neilson's theories. This is also the case of the Australian jurisprudence, as the examples related to persecution above show. 176 Hinger, Ibid. 177 LaViolette, Independent, Ibid.
homosexuality is not considered a crime, other laws related to homosexuality 178 as well as other laws punishing different crimes that the applicant is alleged to have committed 179, can be used with a persecutory intent towards sexual minorities. On the other hand, if criminal laws prohibiting same-sex relations between consenting adults exist, adjudicators should consider their scope, impact and enforcement in the particular social context 180. Laws prohibiting same-sex relations are discriminatory and violate the right to privacy but they might as well be considered persecutory per se if they reflect social or cultural norms which are not in conformity with international human rights standards 181. It is agreed upon that harsh forms of punishment against human rights standards, such as death penalty or severe corporal punishment, have a persecutory character. However, the Guidance Note underlines that focusing obsessively on the harshness of the punishment might reinforce the idea that homosexuality is a crime 182 and as consequence this attitude is not productive. It should also be added that the existence of laws criminalizing homosexuality implies the inability and unwillingness for the applicant to enjoy State protection, as he could be accused of being the aggressor or a criminal himself 183. On the other hand, the availability of State protection is more difficult to prove when the prosecutor is a private actor 184. A major issue in assessing and comparing the seriousness of human rights violations in LGBT claims is the access to human rights documentation. While the amount of information might be very scarce and difficult to obtain in some cases, in some others it might be not accurate or reliable enough. Firstly, it should be taken into account that only relatively recently international human rights organizations started to cover these issues 185. As well, these organizations admitted the difficulty to gather information as violence towards these people goes often unreported, due to the worldwide negative attitude towards them 186. In addition, still today the work of LGBT human right activists remains very risky due to societal and governmental pressures 187. Unfortunately, sometimes the lack of evidence has been misinterpreted as lack of persecution188. As well, inappropriate sources have been used as an alternative to the scarcity of documentation 189. For instance, Australian adjudicators have frequently employed partial information from the Australian department of Foreign Affairs and Trade. These, apart from being superficial and sometimes speculative 190, were occasionally contradictory among themselves 191. A gay travel guide called Spartacus was also extensively referred to when assessing gays and lesbians claims 192. Obviously, the guide was not designed for documenting human rights violations but for providing touristic information193. Still, it was considered as a source of criminal law and preferred to independent human rights documents in some
These are laws “proscribing “carnal acts against the order of nature” and other crimes, such as “undermining public morality” or “immoral gratification of sexual desires” ”. UNHCR, Guidance Note, par. 17. 179 Typically, these are crimes of rape, child molestation or drug-related crimes. UNHCR, Guidance Note, par. 21. 180 LaViolette, UNHCR, Ibid. See also: UNHCR Guidance Note where is underlined that these laws even if not enforced or implemented can have far reaching effects onthe enjoyment of human rights. Thus, an accurate analysis of the social context is crucial. 181 Still, the applicant has to demonstrate his or her fear of being persecuted in relation to this law. UNHCR, Guidance Note, par. 18. 182 UNHCR, Guidance Note, par. 19. 183 UNHCR, Guidance Note, par. 22. 184 LaViolette, Independent, Ibid. When persecution exists not only the applicanti is unable or unwilling to avail himself or herself of the protection of the State, but also the State is unable or unwilling to provide protection to his or her citizen, i.e. the applicant. However, in the case of private actors, as specified by par. 65 of the UNHCR Handbook: "serious discriminatory or other offensive acts (…) committed by the local populace, (…) can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection". 185 Amnesty International and Human Rights Watch started to collect information about LGBT only in the mid 1990s. Davuergne, Millbank, Burdened by Proof How the Australian Tribunal System has Failed Lesbian and Gay Asylum Seekers, 31 Federal Law Review, 2003. LaViolette, in Independent, Ibid. underlines the widespread discrimination in human rights organizations themselves towards LGBT in particular during the 1990s. 186 Cfr. Louise Arbour's, UN High Commissioner for Human Rights, declaration: "violence against LGBT person often goes unreported, undocumented and goes ultimate unpunished. Really it does provoke public debate or outrage. This shameful silence is the ultimate rejection of the fundamental principle of universality of human rights." In LaViolette, Sexual Orientation, Ibid., at p. 28. 187 The Special Representative of the Secretary- General on the situation of human rights defenders has reported frequently violence against LGBT activists. O’Flaherty, Fisher, Ibid. 188 This was the trend especially in early Canadian decisions but also nowadays in some circumstances. LaViolette, Independent, Ibid. 189 Davuergne, Millbank, Ibid. 190 In the case of a Nigerian gay (RRT Reference N.98/21542), the court held that the possibility for a person to be beaten by others contrary to his sexuality was the same in Nigeria and in Australia. 191 Dauvergne, Millbank, Ibid. 192 It is worth to notice that the Guide was instead designed for gay man and not for women. Dauvergne, Millbank, Ibid. 193 See also the case of the refugee lawyer Battista, who in 2002, complained to the Immigration refugee Board of Canada stating that the information package related to the claimant he was representing contained material related to gay tourism and travel industry. LaViolette, Independent, Ibid.
instances. Interestingly, when the two sources mentioned above were used, the recognition rate was very low 194. Certainly, not only the quality of the sources but the appropriateness of their use is of capital importance for the outcome of the claims. Unfortunately, misrepresentation of evidence and improper use of sources have also had a negative impact on Australian decisions 195. In conclusion, different aspects should be examined carefully when deciding if a LGBT claimant fear is well-founded and constitutes persecution. Specially, the difficulty of obtaining very specific and reliable information should not be disregarded. In these cases, the examiners should try to focus on different societal aspect and gather more information. As well, the examiners should resist the temptation of applying simple westernized models to realities that are very different from their own. The specific background of origin is also determinant to evaluate properly the limits between discrimination and persecution and between prosecution and persecution. As a consequence, the examiners should be conscious of the complicated aspects relating to LGBT claims and act cautiously when taking their decisions.
4.LGBT LOOKING FOR PROTECTION AND SAFETY IN TURKEY Turkey hosts a high number of refugees and asylum seekers every year 196, mainly from Iraq, Iran and Afghanistan but also from different African countries. Among them, the ones that are fleeing homophobia arrive in a country that is quite hostile towards LGBT individuals. The precarious living conditions that asylum seekers and refugees face in Turkey are complicated by feelings of frustration and unsafety in the case of LGBT. The following part of this paper addresses the issue presenting the protection system in Turkey and the experiences of LGBT people during the processes aiming at recognizing refugee status and at granting asylum. A final part is devoted to the description of the different difficulties that LGBT have during their staying in Turkey, including security, housing, work and education.
4.1 THE GENERAL PROCEDURE IN TURKEY Due to its geographical location at a crossroads between Europe, Asia, Africa and the middle East, Turkey has always been subjected to mixed migration flows of refugees and migrants 197. Turkey is party of both the 1951 Convention and of the 1967 Protocol198 but still maintains the “geographical limitation” and processes only cases resulting from “events occurring in Europe” 199. In practice, this results in two different subjects in charge of the refugee status determination (RSD) process: the Ministry of Interior for the European asylum seekers and UNHCR for non-European asylum seekers, that constitute the vast majority of the refugee population in Turkey 200. Interestingly, UNHCR role in RSD is not explicitly referred to in any law and there is no seat agreement between Turkey and UNHCR 201. Non-European asylum seekers are subjected to two parallel procedures: the request for temporary asylum to the Turkish authorities and the application for the recognition of refugee status to UNHCR 202. Even though the process should follow this order, in practice, the asylum seekers mostly approach UNHCR
In the 85% of the cases where the DFAT sources were used and in the 90% of the cases where the Guide was used the applicants were denied refugee status. Dauvergne, Millbank, Ibid. 195 For years the Australian judgments proposed evidences that were copy pasted from previous documents. Swink, Ibid. 196 In January 2011 the number of asylum seekers was 6'715 whereas the number of refugees was 10'032. The general recognition rate as refugees in 2010 was 65 %. At: http://www.unhcr.org/pages/49e48e0fa7f.html# 197 http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e48e0fa7f 198 Turkey ratified the Convention in 1962 and the Protocol in 1967. UNHCR Office in Turkey, UNHCR in Turkey: facts and figures, Ankara, 2010. 199 http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e48e0fa7f. Events occurring in Europe should be understood as events occurring in a country member of the Council of Europe, UNHCR Office in Turkey, Ibid. The 2005 National Action Plan for the Adoption of the European Union acquis in the field of Asylum and Migration proposed the lifting of the geographical limitation to the Convention in 2012. However, the government is still discussing this possibility. As this process is likely to take time, UNHCR will continue to conduct RSD for non European refugees. UNHCR Office in Turkey, Ibid. 200 Between 50 and 60 European refugees were present in Turkey in 2010. Source: ASAM. 201 UNHCR is quoted in the asylum regulation only in relation to its role in facilitating resettlement. UNHCR Office in Turkey, Ibid. 202 Zieck, UNHCR and Turkey, and Beyond: of Parallel Tracks and Symptomatic Cracks, International Journal of Refugee Law (2010) 22 (4), 2010.
before 203. The applicant is then referred to the police office to register in the satellite city 204 he or she is assigned to by the Ministry of Interior 205. The applicant has a legal entitlement to remain in Turkey only after a detailed interview with the Government authorities, aimed at determining if he or she meets the Convention criteria, but resulting only in the declaration of asylum seeker status 206. Indeed, hosting the non-European asylum seekers and refugees on its territory Turkey is bound by the fundamental principle of non-refoulement, 207 and the other international and regional legal instruments is party of, in particular, the European Convention of Human Rights (ECHR) 208. After registration with the police, the asylum seeker is provided an identification card. Then, he or she has to apply for residence permit, ikamet, which allows for social assistance, work and in some cases medical assistance 209. Once recognized refugee, the applicant is usually granted temporary asylum in Turkey until he or she is offered by the receiving State, with the assistance of UNHCR, the possibility of resettlement in a third country. 210 The applicant usually remains on average eleven months in Turkey, from registration to resettlement.
4.2 LGBT ASYLUM SEEKERS LOOKING FOR PROTECTION The number of LGBT asylum seekers and refugees in Turkey is, similarly to global trends, very limited. Although there are no official statistics from UNHCR it can be estimated that in January 2011 between 110 and 200 LGBT people were residing in Turkey 211. The vast majority of them was Iranian and gay 212. Fleeing a country where they are very likely to face persecution, LGBT come to Turkey looking for protection and safety. Even if UNHCR recognition rate is very high for this category 213, not always they can find safety during their staying in Turkey. As for other vulnerable cases 214, UNHCR tries to prioritize these claims, reducing the waiting period between registration and resettlement. Also, in the last years, UNHCR has paid great attention to the simultaneous submission of couples to the resettlement countries 215. Still, due to UNHCR limited resources and long procedures of the resettlement Countries, LGBT, as others refugees, are likely to remain in Turkey one or more years 216.
The procedure is established in the 1994 Asylum Regulation on the procedures and principles related to population movements and aliens arriving in Turkey either as individuals or in groups wishing to seek asylum either from Turkey or requesting residence permits in order to seek asylum from another country. The regulation was amended in 1999 and in 2006 an Implementation directive was issues. Helsinki, 2009, Ibid. See also: UNHCR Office in Turkey, Ibid. 204 The RSD interview is not conducted unless the person is registered with the Government. UNHCR, Information for Non-European Nationals Seeking Asylum in Turkey, 2009, available at: http:// info.unhcr.org.tr/leaflets/AsylumInTurkey/AsylumInTurkey_English.pdf 205 Refugees are not allowed to reside in the largest cities in Turkey, i.e. Istanbul, Izmir and Ankara. They are assigned to one of the so-called satellite cities. Their number is decided by the Minister of Interior and varied during the years. In March 2011 they satellite cities were fiftyone. The cities hosting the highest number of refugees and asylum seekers were: Kayseri, Nevşehir, Niğde, Kırşehir, Tokat, Sivas, Yozgat, Konya, Isparta, Burdur, Adana, Hatay, Afyon, Gaziantep, Van, Kastamonu, Amasya, Karaman, Aksaray. Source: ASAM. 206 Zieck, Ibid. The applicant is not immediately informed about the positive outcome of the interview granting him or her asylum in Turkey. Indeed, the procedure for temporary asylum is usually completed when the applicant has already been recognized refugee by UNHCR and is about to leave the country. Helsinki, 2011, Ibid. See also: UNHCR Office in Turkey, Ibid. 207 Zieck, Ibid. concludes that Turkey should not be bound by the principle of non-refoulement in terms of the Convention as far as non European refugees are concerned as Turkey is a persistent objector. Still, Turkey is bound by art. 3 ECHR. The idea presented by Zieck is not supported by the author of this paper, as no evidence was found of Turkey being a persistent objector not accepting non-refoulement in relation to ECHR judgments. 208 Turkey signed the ECHR on 4 November 1950 and ratified it on 18 May 1954. 209 The cost of the ikamet is decided by the Government and varies every year. For 2011 asylum seekers are obliged to pay at a minimum 149 Turkish Lira plus residential fees. These fees are variable according to nationality (for Sudanese, Iranians, Afghans 25 $ the first month and 5 $ the following months, for Iraquis, Tunisians and Egiptians 5 $ the first month and 0,5 the following months) and can be waived in case of indigence. Helsinki, 2011, Ibid. 210 Even though there is collaboration between the Turkish authorities and UNHCR not always UNHCR decisions are respected by the Turkish authorities. Thus, a refugee recognized by UNHCR can still be repatriated by Turkish authorities, as some cases ruled by the European Court of Human Rights demonstrate. Zieck, Ibid. 211 Source: ASAM. 212 These estimates derive from the unofficial data from UNHCR and ASAM. 213 In 2010 the acceptance rate was almost total for this category. Helsinki, 2011, Ibid. 214 Although LGBT are not considered as vulnerable people per se, they can be included in one of the categories of Applicants With Special Needs. For instance, transgenders are commonly considered as vulnerable cases. See UNHCR, Procedural, Ibid. par. 3.4. 215 Helsinki, 2011, Ibid. 216 Helsinki, 2011, Ibid..
4.2.1 UNHCR PROCEDURES The asylum seeker and refugee community in Turkey expressed satisfaction for the treatment received by UNHCR officials since 2009. The Unsafe Heaven reports 217 as well as the LGBT people interviewed in Kayiseri recognized that UNHCR has adopted a more respectful and sensitive approach when dealing with these cases in the last years. This positive trend derives from an increased awareness of the problems of these asylum seekers acquired through trainings, coaching by supervisors and a closer cooperation with NGOs working with LGBT 218. The attention of UNHCR headquarters to LGBT issues, including new policies relating the Iranian refugees 219, have also contributed to these improvements 220. Still, as it will be underlined later, some sporadic criticisms continue be addressed to the Office. 126.96.36.199 THE REGISTRATION INTERVIEW The asylum seekers and refugees interviewed in Kayseri did not report any problem during their registration interview with UNHCR. As well, they were confident while identifying their sexual orientation or gender identity as the reason why they fled Iran. Only in one case, a gay claimant maintained to have experienced some embarrassed at the beginning of the interview while disclosing his homosexuality to a man officer. However, he stated that he preferred not to ask for a female officer fearing that this would have resulted in longer waiting period. Anyways, it should be mentioned that UNHCR pays great attention to the request related to the sex of officers 221. It is also worth to mention that the 2009 Unsafe Heaven report expressed concern for the offensive treatment that some asylum seekers reserved to LGBT while waiting for their UNHCR interview in a common room in the Ankara Office 222. The same problems were not documented in the 2011 report and were also not revealed to author of the paper during the interviews in Kayseri . 188.8.131.52 THE RSD INTERVIEW The people interviewed in Kayseri declared themselves generally satisfied with the treatment received during the RSD interviews. They appreciated in particular the professional behavior of the legal officers and most of the times declared themselves at ease to explain their story. As mentioned in the previous part of this paper, the creation of a safe environment where the asylum seeker feels free to explain his or her story has a fundamental importance especially for this kind of claims. The interviewer should always remember that the applicant is usually very stressed during the interview, being conscious that its outcome is determinant for his or her life. One gay asylum seeker described his feelings as follows: "all of my life I had to hide my sexual orientation in Iran and during the interview I had to describe my life as gay in a very limited time. I was very stressed of forgetting some details." Despite acknowledging a positive and respectful atmosphere during UNHCR interviews in general, in some cases, asylum seekers and refugees as well as Kaos GL criticized the nature of the questions asked. Even though they admitted that the ideal condition of being believed on the basis of a mere declaration of being LGBT is not applicable to RSD procedures, they maintained some questions to be unnecessary or offensive. While the applicants declared themselves happy to answer questions about their sexual orientation and gender identity, some affirmed to be disturbed by queries relating to other aspects of their
I will refer to the Helsinki Committee reports in these terms. The allocation of additional resources to the Office has created new opportunities for trainings and monitoring by the supervisors. Helsinki, 2011, Ibid. 219 Helsinki, 2011, Ibid. 220 Indeed, the Guidance Note was issued in 2008 and the most recent UNHCR workshop held in Geneva in October 2010 confirms UNHCR concern towards LGBT asylum seekers and refugees. 221 The Applicants have the right "to request that Registration and RSD Interviews are conducted by UNHCR staff and interpreters of sex preferred by the Applicant, where available ". UNHCR, Procedural, Ibid. , p. 42. 222 Helsinki, 2009, Ibid.
life 223. As well, they complained about an excessive attention to the events' dates, especially when documents were submitted as an evidence. Furthermore, in sporadic cases, Kaos GL and the interviewees in Kayseri referred about asylum seekers being asked very detailed and embarrassing questions regarding their sexual activities and preferences. On the contrary, asylum seekers declared themselves at ease when asked general questions related to their sexual experiences. In addition, in one case, a claimant stated to be disturbed by the unpleasant and homophobic attitude of the interpreter. However, the applicant preferred not to raise the issue during his interview and not to complain afterwards, even if he was aware of the existence of a formal complaint mechanism at UNHCR. Indeed, some of the asylum seekers affirmed not to be confident about the impact of this mechanism. Anyways, it should be underlined that UNHCR ensures that the complaint and the RSD procedures are separated224. In any case, UNHCR should continue to train its personnel and monitor its behavior so as to avoid these unpleasant situations. UNHCR should ensure that the applicants feel respected and free to talk about their stories. 4.2.2 THE TURKISH AUTHORITIES PROCEDURES All the interviewees in Kayseri declared to be registered with the police and to go regularly for signature. They affirmed to be treated very respectfully. Similarly, the Unsafe Heaven reports confirm that the LGBT community usually received a satisfactory treatment by the police. However, in some cases, specially in Kayseri and Nevsheir, some LGBT people were recommended to change their appearance for their "own safety", in order to reduce the risks of being targeted by the local population. This is a significant indicator of the social attitude towards LGBT in Turkey but it is anyways not acceptable. Indeed, LGBT asylum seekers and refugees would be forced to live "discreetly", in continuous denial of their rights whereas the police should guarantee that their rights are respected. Not surprisingly, the police attitude did not reassure many of the asylum seekers and refugees that felt instead that the police would not be able to protect them 225. As far as the asylum interviews with the police are concerned, the refugees in Kayseri were pleased with the treatment received. However, both editions of the Unsafe Heaven Report underlined that the experiences of the applicants varied a lot and many of them felt that their privacy was not respected also because excessive invasive questions were asked 226. This further proves the necessity of additional trainings for the police personnel.
4.3 LGBT ASYLUM SEEKERS AND REFUGEES LOOKING FOR SAFETY The situations of LGBT asylum seekers and refugees in Turkey should be addressed taking into account their double condition of foreigners seeking refuge and of LGBT in Turkey. Indeed, not only they experience precarious life conditions similarly to the rest of the asylum seekers and refugee population, but also they suffer for a general climate of intolerance towards LGBT in the country 227. According to Randazzo, LGBT asylum seekers and refugee situations are not only the sum of those two characteristics but should be considered in a wider perspective. In this sense, their marginality is "double", deriving also from the lack of
According to Kaos GL questions relating to child abuse where misleading when interpreted as a determinant of the applicant sexual orientation or gender identity. 224 Complaints Procedures in UNHCR, Procedural, Ibid., par. 2.6. 225 Helsinki, Ibid. p. 13. 226 Helsinki, 2011, Ibid. 227 Human Rights Watch, We Need a Law for Liberation: Gender, Sexuality and Human Rights in a Changing Turkey, 2008.
access to traditional support systems and resources 228. Amnesty International maintains that LGBT asylum seekers and refugees are more dependent than others refugees on the State of asylum 229 and this results problematic in a country like Turkey, where the support system for refugees is very limited. LGBT are among the most vulnerable asylum seekers and refugees in Turkey nowadays 230 as they find themselves in an "unsafe heaven". Some Iranian LGBT expressed their feeling of insecurity referring to Turkey as "worst then Iran" 231. The following paragraphs will clarify the meaning of these expressions. 4.3.1 FEELING UNSAFE IN TURKEY The social context for LGBT in Turkey is quite hostile. Even though Turkey does not prohibit homosexuality, there is no law protecting LGBT and morality-based laws are often applied against them 232. The authorities tend to ignore the rights of LGBT people and have repeatedly refused to reform non-discrimination provisions in favor of them. Moreover, important politicians expressed their homophobic views in public, sometimes maintaining that the society is not ready to change 233. Due to the pervasive culture of homophobia and transphobia LGBT suffer tremendous pressures from their families and the society. They are discriminated by state and non state actors in the workplace, education, housing and health service. LGBT are also targets of violence, harassment and serious crimes, including violent attacks and murders 234. However, the victims do not always find adequate protection in the police and many renounce to approach it out of fear of being accused of something they have not committed235. As a consequence, many of them live hiding their sexual orientation and gender identity. This is very complicated in particular for transgenders that are typically more visible and as a result suffer more violence and discrimination 236. I decided to interview LGBT people in Kayseri because this is one of the satellite cities where these people suffer more the societal pressure. Although being one of the most conservative cities in Turkey, is also the one that hosts the highest number of LGBT Iranian refugees 237. Knowing that in this city they would find at least the support of an LGBT community, many LGBT asylum seekers ask to be sent to this city while others are automatically sent here, sometimes with the same belief 238. However, all the LGBT hosted in Kayseri complain about the fact that members of their community are very likely to be mistreated and harassed by the local population. Some of the people interviewed asserted to feel less free in Turkey than in Iran, observing that while in their country of origin they could eventually live a second hidden life, in the
Randazzo, Social and Legal Barriers: Sexual Orientation and Asylum in the United States, in Queer Migrations: Sexuality, US Citizenship, and Border Crossing, eds. Ethne Luibhéid and Lionel Cantu, Minneapolis, MN, University of Minnesota Press, 38, 2005. 229 Amnesty, Ibid. 230 Helsinki, Ibid. 231 This was the expression used by some of the refugees and asylum seekers interviewed in Kayseri. 232 For instance, the three biggest LGBT organizations (Lambda Istanbul, Kaos GL Ankara and Black Pink Triangle Izmir) have repeatedly been taken to Court in the last years with the accusations of 'fuelling immorality', 'going against Turkish identity', 'housing illegal activities' and 'violating values and family structures'. http://gaymiddleeast.com/news/news%20255.htm. The only provisions explicitly discriminating towards LGBT are the one relating to the military service. Indeed, gays are exempted from the service as homosexuality is considered an illness. Human Rights Watch, We Need, Ibid. 233 Some of the examples quoted by Amnesty International are particularly significant. For instance: Aliye Kavaf, the Minister of State responsible for Women and the Family, stated: “homosexuality is a biological disorder and should be treated”. Also, in 2003 Prime Minister Recep Tayyip Erdoğan’s spokesperson held that LGBT could not be members of his party. As well, members of the Parliament justified the absence of reforms on these issues with the excuse that the population was not ready. The national attitude is mirrored in the international context, where Turkey did not support initiatives aiming at improving LGBT protection For instance, in May 2010, during the United Nation’s Universal Periodic Review process, Turkey rejected the recommendations to adopt non-discrimination provisions relating to sexual orientation and gender identity. In December 2010, Turkey did not support the United Nations General Assembly Resolution that condemns extrajudicial, summary or arbitrary executions with reference to people targeted due to their sexual orientation. Moreover, in March 2011 Turkey did not support a joint statement at the United Nations Human Rights Council on ending acts of violence and human rights violations based on sexual orientation and gender identity. Amnesty, Ibid. 234 Amnesty International underlines that there are no official statistics relating to the attacks suffered by LGBT but according to human rights organisations 16 murders were perpetrated in 2010 due to the victims’ sexual orientation or gender identity. Amnesty, Ibid. The 2011 Unsafe Heaven report documents instead forty-five LGBT murders resulting from hate-motivated crimes. Helsinki, 2011, Ibid. 235 Human Rights Watch, We Need, Ibid. See also: Immigration and Refugee Board of Canada, Turkey: Treatment of gay, lesbian and transgender people by Turkish society; treatment by authorities; legislation, protection and services available, 11 June 2007. 236 Amnesty, Ibid. 237 Source: Kaos GL and ASAM. See also: Helsinki, 2011, Ibid. 238 Source: ASAM.
country of asylum they were not able to do it due to the pervasive conservative social attitude, especially in some cities. One interviewee described this condition as follows: "Potentially every time you go out you can be mistreated or harassed." For instance, two of the interviewees recalled being beaten on the street for no reasons. As well, they referred to others members of the community being harassed on the street as much as in their private houses. They reported that recently some teenagers threw stones at a lesbian's house. Similar episodes of violence are mentioned in the Unsafe Heaven reports 239. Fearing to be assaulted or mistreated, LGBT try to hide their sexual orientation or gender identity from the local Turkish population240 and sometimes also from the refugee population 241. Indeed, others Iranians seeking refuge in Turkey repeatedly mock and ridicule the LGBT community. The 2009 Unsafe Heaven report noted the case of a lesbian physically attacked by another asylum seeker while waiting for signature in Kayseri 242. As a result, the LGBT refugee people in Kayseri try to protect themselves living in their closed community and staying mainly at home. As well, they do not socialize much with the Turkish LGBT that are anyways very reserved. However, the interviewees in Kayseri and ASAM confirmed that the police is very responsive to their complains in this city since 2009 243. While recognizing the positive attitude of the police in Kayseri 244, the Unsafe Heaven report underlines that the help accorded by the police varies conspicuously among cities and is usually not very satisfactory 245. Also, even though the Turkish laws recognize to everyone the right to initiate legal proceedings on the same conditions of normal citizens, in many cases the victims prefer not to report to the police as they do not believe in its assistance and they fear retaliation from local communities or other Iranians 246. In addition, some refugees decide not to initiate legal proceedings in order not to delay their resettlement procedures. Indeed, Kaos GL documented the case of a gay refugee who was raped in Turkey and whose resettlement procedure was pending as a consequence of the trial related to this event. Thus, even if the police responsiveness is a very positive element, LGBT do not always seek justice for different reasons and continue to live in constant fear. 4.3.2 ACCESS TO WORK AND MEANS OF SURVIVAL As for others asylum seekers and refugees, it is almost impossible for LGBT to find a regular job in Turkey. Indeed, the law recognizes to foreigners the possibility to obtain a legal work permit only if a qualified Turkish national cannot be identified 247. Also, they must hold a six-month residence permit, the ikamet 248. Lacking mostly of language skills to meet these requirements, asylum seekers and refugees resort frequently to illegal jobs. However, even when obtaining illegal jobs they are usually overexploited and might have difficulties in getting their salaries. These difficulties are exacerbated if the person is LGBT and the Unsafe Heaven reports documented multiple cases of discrimination in the access to jobs and harassment in the workplace 249. 70% of the LGBT refugee population in Kayseri was reported not to be very poor, while the rest was described as living in extremely harsh economic conditions. For instance, a transgender woman explained that her economical condition was so bad at her arrival in Turkey that she had to share her house with a man and accept his sexual proposals. The people interviewed asserted that they were almost never
Most of the 108 people interviewed for both the reports referred to physical safety as one of their main concerns. A vast majority suffered at least one episode of violence during their staying in Turkey. Five violent physical attacks, two sexual assaults and numerous verbal harassments and threats against LGBT asylum seekers and refugees were documented by the Helsinki Committee and ORAM since 2009. Helsinki, 2011, Ibid. 240 Lesbians are specially careful in hiding their sexual orientation in order not be harassed. Helsinki, 2011, Ibid. 241 In one case mentioned by one interviewee an asylum seekers kept describing himself as a political refugee while his case was based on sexual orientation. 242 Helsinki, 2009, Ibid. 243 The positive engagement of the police followed an episode of particular hostility towards some Iranians LGBT living in Kayseri. Source: ASAM. 244 Helsinki, 2011, Ibid. 245 In many cases the police does not offer adequate support and protection and dissuades instead the victims to follow complains. Helsinki, 2011, Ibid. 246 Helsinki, 2009, Ibid. 247 Law on Work permit of Foreigners, n. 4817 of 2003, in UNHCR Office in Turkey, Ibid. 248 However, at least for the LGBT in Kayseri this does not constitute a problem as the 90% of them got an exemption. 249 Kaos GL Association, Report on the Problems of the Lesbian, Gay, Bisexual, Transvestite and Transsexual (LGBTT) Refugees, Ankara, 2009.
able to work 250 and they found discriminations mainly due to their status of refugees, sometimes aggravated by their LGBT identity. They support their lives through their savings and in sporadic cases through money sent from their families 251. In addition, some LGBT receive assistance from local Churches as well as from the Iranian Railroad for Queer Refugees, an Iranian LGBT association based in Canada 252. Limited economical assistance is also provided by UNHCR to most vulnerable cases, in particular after the recognition of the refugee status. Finally, some LGBT people turn to survival sex work as last option253. However, knowing the entity of this phenomenon is very difficult because people doing it tend to avoid to declare it. However, the few sex workers reported to be present in Kayseri, were people already doing it in Iran. 4.3.3 HOUSING Asylum seekers and refugees are not provided any accommodation in Turkey and have to pay for their own expenses. Due to their precarious economic conditions, LGBT refugees often have to share their apartment and live in overcrowded and unhealthy places. Typically, they decide to live with members of the LGBT community to avoid additional discriminations 254. Most of them face discrimination due to their sexual orientation or gender identity when looking for an accommodation. They encounter hostility from the local population but also from other refugees. Kaos GL documented the case of a transgender woman who was a victim of physical assault at the hands of her landlord in Ankara 255. Similarly, a transgender woman in Kayseri declared to be harassed and misused a lot to find an apartment due to her gender identity 256. It should be noted that Turkey does not guarantee protection discrimination in the access to housing on the basis of sexual orientation or gender identity. However, refugees and asylum seekers usually do not hold a regular contract and thus it might be difficult for them to start legal proceedings against the landlord in case of eviction, even though not theoretically impossible 257. 4.3.4 EDUCATION The Turkish law recognizes the right to primary education to citizen and non citizens and grants to foreign adults the opportunity to attend language and vocational classes 258. However, the students must hold a regular residence permit, which is not always the case 259. Anyways, these services are not always available, specially in minor satellite cities. Indeed, only few NGOs in Turkey are able to provide language classes and not always refugees are aware of their offers. Also, in some cases, LGBT attending the courses decide to quit them because of being mistreated by the classmates 260. The LGBT interviewed in Kayseri did not attend any classes. They underlined the importance of learning the language but declared that they were not offered adequate service. However, it should be underlined that NGOs as ASAM operate with limited human and economic resources 261. 4.3.5 HEALTH CARE AND SOCIAL ASSISTANCE
Some of the interviewees declared to be able to work only occasionally. Anyways, they had many difficulties to be paid. Some Iranian families prefer to send their LGBT children out of the country to preserve them from persecution. 252 See: http://www.irqr.net/finaid/fin-aid-application.htm 253 Helsinki, 2011, Ibid. 254 This is true also for the case of Kayseri. Still, while ASAM maintains that all the LGBT refugees live in the same area this was not confirmed by the interviewees. 255 Kaos GL, Ibid. See also: Helsinki, Ibid. 256 Similar episodes are quoted in Helsinki, 2009 and 2011, Ibid. 257 Helsinki, 2011, Ibid. p.22 258 Helsinki, 2009 and 2011, Ibid. 259 Helsinki, 2011, Ibid. 260 Helsinki, 2011, Ibid. 261 Source: ASAM.
90% of the LGBT in Kayseri were exempted from paying the residential fees or ikamet 262. Holding the residence permit is fundamental for accessing social assistance and being granted in particular cases free medical care. The people interviewed did seek medical assistance and never had problems related to their sexual orientation or gender identity. The Unsafe heaven reports confirm that LGBT were usually respected from health care providers but underline that some LGBT are not able to not afford some treatments due to financial constraints 263. The LGBT interviewed in Kayseri never sought social assistance. However, cases of discriminations were documented for LGBT seeking social assistance in Kayseri and in other cities 264. 4.3.6 A PSYCHOLOGICAL UNSAFE HEAVEN Gun stressed the importance of perceiving the living place as a psychological heaven, especially for refugees that have experienced serious trauma 265. Indeed, every refugee remains in a condition in which his or her life is suspended and has feelings of nonexistence. If this might be common to all displaced people, the specific situations of LGBT carries additional concerns. In the city of Kayseri the precarious life conditions and the frightening environment has lead some of the people to psychological problems. As well, being practically forced to live in their closed LGBT community, they develop an extreme feeling of loneliness and helplessness. The transgender woman interviewed declared that she became depressed during her staying in Turkey. As well, a gay asylum seeker asserted that due to the stress resulting from the harsh life conditions and the fact that his status was pending at UNHCR, he started to think about committing suicide for the first time in his life. This case seems not to be isolated as numerous suicides attempts were reported by LGBT asylum seekers and refugees living in Turkey in the last three years 266. The interviewees underlined that the psychological sufferance is one of their main concerns and complained that the services offered by the NGOs supporting them, such as ASAM, are not effective. Even though as underlined before, NGOs have limited economical resources, the psychological service should be guaranteed to LGBT people that require it. 5. CONCLUSIONS This paper presented the challenges that LGBT asylum seekers and refugees face after fleeing from their countries and looking for protection and safety. As far as the protection dimension is concerned, it is well-established that LGBT are entitled to international protection, provided that they meet the Convention requirements. However, different variables cannot always ensure that LGBT fleeing persecution have their claims accepted. Emotional and psychological elements can play against the applicant and undermine his or her general credibility. As a consequence, examiners should always be careful in creating a safe environment during the interview, which should be functional to an effective communication. Above all, examiners should consider the personal nature of the claim and be very respectful. Sometimes, examiners can adopt westernized stereotypical positions or homophobic attitudes while addressing the claimants, being finally unable to understand correctly the interviewees' concerns and words. This behavior might have a negative impact on the assessment of both credibility and well-founded fear. Many examiners might apply this mechanisms unconsciously, as a result of the fact that LGBT issues represent a deviation from the constituted gender roles everywhere in the world. Thus, it is important that
262 UNHCR has always criticized the obligation of payment of a residential fee for asylum seekers. Still, positively, after 2008 Turkey started to granted more exceptions to asylum seekers and refugees. Source: ASAM. 263 Helsinki, 2009 and 2011, Ibid. 264 Helsinki, 2009 and 2011, Ibid. 265 Zubeyit Gun, From Past to present Human at the nexus between Laws, Conventions, and Borders: Psychological Disturbance During Asylum Application Process, in seminar UNHCR, Turkey’ s Historical Tradition of Asylum: Past practice and Future Application in the Context of Developing Legal Frameworks, Second Academic Network Seminar, Ankara, 6-7 January 2011. 266 See also: Helsinki, 2011, Ibid.
the examiner as well as the interpreter are familiar with the gender power in their own society. Also, they should be aware of the influence that this social atmosphere has upon them. To reach these aims, targeted trainings, with the participation of LGBT organizations can be used. This is of pivotal importance especially in countries of asylum where sexual orientation or gender identity related issues are criminalized. Furthermore, even if the examiner believes the applicant's account, he can underestimate the risk that the applicant might face upon return to the country of origin. The critical role that the availability of independent human rights documentation plays in this sense has been stressed in the paper. Unfortunately, it is foreseeable that this might continue to be a very problematic issue in the next future. In order to try to overcome this problem it is crucial to consult different sources, especially from local human rights organizations. When this is not possible, a broader gender perspective should be adopted, considering the structure of the society and the threat that LGBT can constitute to the social order. As well, if no information at all is available, the burden of proof should be lowered. Millbank asserted that in refugee law, law is not much an issue but is more "empathy and understanding" 267. More than in other cases, I believe that this is the attitude to be adopted when assessing LGBT cases. Indeed, it is the examiners' cultural blindness and narrow-mindness that prevents at first to address properly the applicants' claims. As far as the living conditions of LGBT asylum seekers and refugees in Turkey are concerned, it is evident that the country of asylum cannot be considered a safe refuge. Positive trends were registered regarding the treatment reserved by UNHCR staff and the local authorities, in particular in Kayseri. However, trainings should continue to be held both for UNHCR and for the police in order to increase awareness about LGBT specific concerns. In particular, the police should be warned to support victims of mistreatment and follow their complains. Indeed, LGBT asylum seekers and refugees are not only discriminated but also suffer serious episodes of violence. As they fear attacks from the local or the refugee population, they prefer to hide themselves and try to find peace in their closed LGBT community. They live a suspended life waiting for UNHCR decision or resettlement in a third country. More than others asylum seekers and refugees, they are marginalized from the surrounding context and experience feeling of loneliness and hopelessness that often result in attempted suicides. LGBT's main concerns derive from precarious living conditions, where psychological and security problems assume a great relevance. New solutions aimed at providing effective psychological support to the people in need should be explored. Also, Turkish classes and financial assistance should be ensured. Finally, LGBT refugees should be allowed to move to bigger and less conservative cities such as Istanbul, Ankara and Ismir 268. The difficulty to obtain protection and safety for LGBT mirrors the mistreatment that these people might face, at different levels, all over the world. Significantly, in 2007, recognizing the persistent pattern of human rights violations towards LGBT at universal level, some international human rights experts found necessary to develop principles explicitly declaring the applicability of human rights to LGBT people. The Yogyakarta Principles have been recognized as an important tool by some States as well from UNHCR 269 and were referred to also by Special Rapporteurs and the Committee on Economic, Social and Cultural Rights 270. However, they have not been explicitly endorsed by the High Commissioner for Human Rights and the Human Rights Council as a result of the hostile attitude of some States. Anyways, the Office of the High Commissioner for Human Rights as well as the UN Secretary General have strongly condemned discrimination based on sexual orientation and gender identity and underlined that all people shall enjoy their human rights without discriminations 271. In conclusion, the increasing attention to LGBT issues worldwide gives some hope for improvements in the respect of these people's human rights. However, as long as LGBT will continue to suffer serious human rights violations for which they have to flee their countries, other States as well as UNHCR should continue to ensure them protection. Effective mechanisms should be further explored
Millbank, Imagining, Ibid. Helsinki, 2011, Ibid. 269 O’Flaherty, Ibid. 270 Ettelbrik and Trabucco Zeran, The Impact of the Yogyakarta Principles on International Human Rights Law Development. A study of November 2007 - June 2010, 2010. 271 http://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBT.aspx.
during all the displacement cycle in order to guarantee a just refugee status determination and a safe living environment.