1

The UNHCR’S Guidance Note on Refugee Claims Relating to Sexual

Orientation and Gender Identity: A Critical Commentary

(2010) International Journal of Refugee Law 173-208.

Pre-print version
___________________________________________________________________

NICOLE LaVIOLETTE

Abstract

Egregious human rights violations have compelled some lesbian, gay, bisexual, and transgender
people to seek refuge in countries with better human rights protection. Whilst this movement of
refugees essentially began in the early 1990s, it is only in 2008 that the United Nations High
Commissioner for Refugees (UNHCR) has directly addressed the issue by releasing the UNHCR
Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity. The most
significant feature of the Guidance Note is that with its release, the UNHCR has recognized that
sexual minorities have encountered a specific set of problems in having the refugee definition
applied to their claims. This commentary argues that while the Guidance Note provides a first
and necessary interpretive road map for decision-makers responsible for determining such claims,
it should not be viewed as a full and complete analysis of refugee claims based on sexual
orientation and gender identity.

1. Introduction
The human rights situation of sexual minorities1 around the world continues to be alarming.
Many countries maintain severe criminal penalties for consensual sex between persons of the
same sex, including the death penalty.2 Sexual minorities also are frequent targets of hate crimes.3
In several countries, restrictions have been imposed on the freedoms of expression and
association of sexual minorities,4 whilst in others homosexuality and transexuality are perceived


Associate Professor and Vice Dean, Faculty of Law, University of Ottawa. The author gratefully acknowledges the
support of the Law Foundation of Ontario.
1
The expression ‘sexual minority’ is used in this commentary to refer to people whose minority status is a result of
either their sexual orientation, sexual identity, or practices with partners of the same sex, or their refusal to conform
to gendered social roles tied to their biological sex at birth. It also includes individuals who have both male and
female physical and sexual characteristics and organs. Thus, the notion of sexual minorities regroups gays, lesbians,
bisexuals, transgendered – which includes transsexuals and transvestites – and intersex people.
2
For a survey of laws prohibiting same-sex sexual conduct, see Daniel Ottosson, State-Sponsored Homophobia: A
World Survey of Laws Prohibiting Same-Sex Activity Between Consenting Adults (International Lesbian and Gay

http://www.ilga.org/statehomophobia/ILGA_State_Sponsored_Homophobia_2008.pdf (accessed 6 April 2010).

Association (ILGA), 2008), available at
3

http://www.humanrightsfirst.info/pdf/07601-discrim-hate-crimes-web.pdf (accessed 6 April 2010) at 5.

Human Rights First, Homophobia: 2007 Hate Crime Survey (New York: Human Rights First, 2007), available at
4
The Guardian, ‘Cuba’s First Gay Pride Parade Cancelled’, 26 June 2008, available at
http://www.guardian.co.uk/world/2008/jun/26/cuba (accessed 6 April 2010).
 2

as Western phenomena,5 anti-revolutionary behaviours,6 crimes against religion,7 sexually

deviant and immoral behaviours,8 mental disorders,9 or unacceptable challenges to gender-
specific roles.10
Egregious human rights violations have compelled some lesbian, gay, bisexual, and
transgender people (LGBT) to seek refuge in countries with better human rights protection. This
movement has led some states to interpret international norms to extend asylum and refugee
protection to women and men fleeing persecution based on their sexual orientation or gender
identity. In the last twenty years, decision makers in countries such as the United States,11
Canada, 12 New Zealand, 13 Australia14 and European States,15 including the United Kingdom,16
5
See Sonia Katyal, ‘Exporting Identity’, (2002) 14 Yale Journal of Law & Feminism 97-176 at 125-32; see also Re
H.F.P. [1999] C.R.D.D. No. 188 para. 15 (QL); Re C.X.S. [1995] C.R.D.D. No. 134 (QL); Re U.F.S. [1999]
C.R.D.D. No. 81 (QL); Re J.P.R. [1999] C.R.D.D. No. 182 para. 9 (QL); Re M.X.J. [2006] R.P.D.D. No. 113 para. 8
(QL).
6
See Re U.L.X. [1998] C.R.D.D. No. 83 para. 2 (QL); Re C.Y.T. [1998] C.R.D.D. No. 186 para. 2 (QL); Re V. (O.Z.)
[1993] C.R.D.D. No. 164 (QL).
7
See Re C.X.S, above n. 5; Re P.L.Z. [2000] C.R.D.D. No. 97 para. 12 (QL).
8
See Re L. (M.D.) [1992] C.R.D.D. No. 328 (QL); Re P. (E.U.) [1992] C.R.D.D. No. 397 (QL); Re B.B.Y. [2003]
R.P.D.D. No. 29 para. 8 (QL).
9
See Re L.(M.D.), ibid.; Re G.J.M. [2002] C.R.D.D. No. 71 (QL); see also Marta Falconi, ‘Gay Italian Labelled as
Disabled Wins Discrimination Case against Gov’t’, Associated Press, 14 July 2008, available at
http://www.pentictonherald.ca/includes/datafiles/CP_print.php?id=121763&title=Gay%20Italian%20labelled%20a
s%20disabled%20wins%20discrimination%20case%20against%20gov%E2%80%99t (accessed 6 April 2010);
BBC News, ‘Gay Counselling’ Call Rejected’, 6 June 2008, available at
http://news.bbc.co.uk/2/hi/uk_news/northern_ireland/7439661.stm (accessed 6 April 2010); News 24,
‘Homosexuality is a Disease’, 28 June 2008, available at http://www.news24.com/News24/World/News/0,,2-10-
1462_2348827,00.html (accessed 6 April 2010).
10
See Nicole LaViolette, ‘Gender-Related Refugee Claims: Expanding the Scope of the Canadian Guidelines’,
International Journal of Refugee Law, Vol.19 No.2 (2007), 169-214 at 180.
11
James Brooke, ‘In Live-and-Let-Live Land, Gay People are Slain’, New York Times, 12 August 1993;
International Gay and Lesbian Human Rights Commission, ‘Attorney General Supports Gay Asylum’, Press Release,
17 June 1994; Brian McGoldrick, ‘United States Immigration Policy and Sexual Orientation: Is Asylum For
Homosexuals A Possibility?’ (1994) 8:2 Georgetown Immigration Law Journal 201-226; Jin S. Park, ‘Pink Asylum:
Political Asylum Eligibility of Gay Men and Lesbians under U.S. Immigration Policy’, (1995) 42 UCLA Law Review
1115-1156.
12
Re N. (K.U.) [1991] C.R.D.D. No. 1140 (QL); Re Inaudi [1992] C.R.D.D. No. 47 (QL); Nicole LaViolette, ‘The
Immutable Refugees: Sexual Orientation in Ward v. Canada’, (1997) 55:1 University of Toronto Faculty of Law
Review 1-41.
13
Re GJ [1995] Refugee Appeal No. 1312/93 (Refugee Status Appeals Authority), where the New Zealand Appeals
Authority granted asylum to a gay man from Iran.
14
David Tuller, ‘Political Asylum for Gays?’, The Nation, 19 April 1993; Kristen Walker, ‘The Importance of Being
Out: Sexuality and Refugee Status’ (1996) 18 Sydney L. Rev. 568-97; Kristen Walker, ‘Sexuality and Refugee Status
in Australia’ (2000) 12:2 Int. J. Refugee Law 175-211; Gay and Lesbian Rights Lobby (NSW), Sexuality Before the
Refugee Review Tribunal: A Review of Australian Refugee Decisions on the Basis of Sexual Orientation (Sydney:
October 2007).
15
European Union Agency for Fundamental Rights, Homophobia and Discrimination on Grounds of Sexual
Orientation in the EU Members States: Part I – Legal Analysis (2009) at 87-102.
16
Stonewall, Press Release, ‘Homosexuals Could be “Social Group” Concedes Home Office Minister’, 5 February
1996; Brent Creelman, ‘Gay Iraqis Win Asylum in UK, But Process still too Tough for Most’, Xtra!, 20 September

http://www.xtra.ca/public/viewstory.aspx?AFF_TYPE=1&STORY_ID=3622&PUB_TEMPLATE_ID=1
2007, available at

(accessed 6 April 2010); BBC News, ‘Gay Iranian Granted Asylum’, 21 May 2008, available at
http://news.bbc.co.uk/2/hi/uk_news/7411706.stm (accessed 6 April 2010). For an analysis of UK decisions, see
Jenni Millbank, ‘A Preoccupation with Perversion: The British Response to Refugee Claims on the Basis of Sexual
 3

Germany,17 Finland,18 Belgium,19 France,20 and the Netherlands21 have granted refugee status to
individuals who fear persecution based on their sexual orientation or gender identity.22 In Canada,
for instance, the first reported sexual orientation claim to be decided dates back to 1991.23 In
April 2002, The Globe and Mail, a major Canadian newspaper, reported that ‘[i]n the past three
years, nearly 2,500 people from 75 different countries have sought asylum on the basis of sexual
orientation in Canada’.24 In 2004 alone, 1,351 sexual orientation based claims were decided in
Canada.25
Whilst this movement of refugees essentially began in the early 1990s, it is only in
November 2008 that the United Nations High Commissioner for Refugees (UNHCR) has directly
addressed the issue by releasing the UNHCR Guidance Note on Refugee Claims Relating to
Sexual Orientation and Gender Identity26 (Guidance Note). The UNHCR’s decision to release its
first analysis of refugee claims based on sexual orientation and gender identity is certainly
welcome. It is indeed significant that the UNHCR has finally recognized that sexual minorities
have encountered a specific set of problems in having the refugee definition applied to their
claims. Given the UNHCR’s mandate to supervise the application of the 1951 Convention
relating to the Status of Refugees (1951 Convention),27 the publication of the Guidance Note is
entirely appropriate and in fact long overdue.
It is hoped however that the UNHCR will consider the Guidance Note as a work in
progress. As this commentary will argue, the Guidance Note does not succeed in canvassing all
of the concerns relevant to LGBT refugee claims. Moreover, the issues raised by the UNHCR are

Orientation, 1989–2003’, (2005) 14:1 Social & Legal Studies 115-38.

17
‘Lesbian Granted Asylum in Germany’ Melbourne Star Observer, 9 October 1998, 7; ‘Germany Gives Iran
Lesbian Asylum’ BBC News, 8 August 2006, available at http://news.bbc.co.uk/2/hi/europe/5254854.stm
(accessed 6 April 2010); Maryellen Fullerton, ‘A Comparative Look at Refugee Status Based on Persecution due to
Membership in a Particular Social Group’, (1993) 26:3 Cornell International Law Journal 505-564 at 531-535.
18
IGLHRC, International Asylum, Fact Sheet, 20 April 1995.
19
Ibid.
20
‘French Give Asylum’, Brother Sister, 6 February 1997, 10; T. Alexander Aleinikoff, ‘Protected Characteristics
and Social Perceptions: An Analysis of the Meaning of “Particular Social Group”’ in Erika Feller, Volker Türk,
Frances Nicholson, (eds.), Refugee protection in international law: UNHCR's Global Consultation on International
Protection (Cambridge: Cambridge University Press, 2003) 263-311 at 281-282.
21
Irene Van Der Linden, ‘Outing in the Polder’ Wordt Vervolgd, July/August 1998; Human Rights Watch,
‘Netherlands: Asylum Rights Granted to Lesbian and Gay Iranians’, Press Release, 19 October 2006, available at
http://hrw.org/english/docs/2006/10/19/nether14428.htm (accessed 6 April 2010); ‘Dutch Government Grants
Asylum to Gay and Lesbian Refugee’, Gay Times, April 1993.
22
For a general survey of countries that grant asylum to sexual minorities, see European Council on Refugees and
Exiles, ‘ELENA Research Paper on Sexual Orientation as a Ground for Recognition of Refugee Status’, European
Council on Refugees and Exiles, available at http://www.ecre.org/resources/Policy_papers/350 (accessed 6 April
2010).
23
Re R. (U.W.) [1991] C.R.D.D. No. 50 (QL).
24
Marina Jimenez, ‘Gay Refugee Claimants Seeking Haven in Canada’, The Globe and Mail, 25 April 2004,

http://www.theglobeandmail.com/servlet/story/RTGAM.20040423.wrefugee24/BNStory/Front/?query=%22Gay+re
available at

fugee+claimants%22 (accessed 6 April 2010).

25
Sean Rehaag, ‘Patrolling the Borders of Sexual Orientation: Bisexual Refugee Claims in Canada’, (2008) 53
McGill Law Journal 70-102.
26
U.N. High Commissioner for Refugees, UNHCR Guidance Note on Refugee Claims Relating to Sexual

http://www.unhcr.org/refworld/docid/48abd5660.html (accessed 6 April 2010) hereinafter Guidance Note.

Orientation and Gender Identity (21 November 2008), available at

27
189 U.N.T.S. 150, entered into force April 22, 1954 hereinafter 1951 Convention .
 4

often inadequately expounded. It is hoped that a future iteration of the Guidance Note would be
based on a bona fide consultation of experts; a thorough survey of scholarship and good practices
in the area; and provide a truly comprehensive legal interpretation of the 1951 Convention’s
application to claims based on sexual orientation and gender identity.

2. Overview of the UNHCR’S Guidance Note

Under the 1951 Convention, the UNHCR is responsible for supervising the application of the
treaty by member States.28 In order to do so, the UNHCR provides interpretations of the legal
norms set out in the international refugee protection regime. The Guidance Note format is one of
several soft law tools used by the UNHCR to provide persuasive legal interpretations to
governments, decision makers, practitioners, and UNHCR staff carrying out refugee status
determination in the field. For instance, the UNHCR publishes a Handbook on Procedures and
Criteria for Determining Refugee Status29 in addition to a series of Guidelines on International
Protection (Guidelines).
Guidance Notes, according to the UNHCR, ‘do not necessarily follow the same extensive
drafting process’ as other interpretive publications and they ‘should be read in conjunction with
the relevant Guidelines on International Protection’.30 Whilst less authoritative than the
Handbook or Guidelines, Guidance Notes are very often the first attempt by the UNHCR to deal
with emerging thematic and legal issues. This is true of the Guidance Note on Refugee Claims
Relating to Sexual Orientation and Gender Identity which, according to the UNHCR, seeks to
clarify the law and legal standards applicable to sexual minority refugee claimants. In addition to
being the UNHCR’s first analysis of sexual orientation and gender identity in the context of
refugee protection, the Note also represents a rare legal examination by a United Nations agency
of the situation of sexual minorities.31
The Guidance Note is eighteen pages long and includes an introduction, a section entitled
‘Substantive Analysis’ and a conclusion. In the introduction, the international agency suggests
that the growing number of refugee claims made by lesbian, gay, bisexual and transgender
individuals ‘necessitates greater awareness among decision makers of the specific experiences
of LGBT asylum-seekers’32. In order to provide such guidance, the UNHCR states that it will
review ‘legislative developments, examine international jurisprudence in the refugee context,
analyse persecution and persecutory practices as well as build on some of the positive practices

28
1951 Convention, above n. 27. The Preamble of the Convention provides that ‘the United Nations High
Commissioner for Refugees is charged with the task of supervising international conventions providing for the
protection of refugees, and recognizing that the effective co-ordination of measures taken to deal with this problem
will depend upon the co-operation of States with the High Commissioner…’.
29
U.N. High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status

http://www.unhcr.org/refworld/docid/3ae6b3314.html (accessed 6 April 2010) hereinafter Handbook.

under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (1 January 1992), available at
30
Guidance Note, above n. 26, at 2. In the case of the Guidance Note on Refugee Claims Relating to Sexual
Orientation and Gender Identity, the relevant Guideline are :UN High Commissioner for Refugees, Guidelines on
International Protection No. 1: Gender-Related Persecution Within the Context of Article 1A(2) of the 1951

http://www.unhcr.org/refworld/docid/3d36f1c64.html [accessed 6 April 2010] hereinafter Gender Guidelines.

Convention and/or its 1967 Protocol Relating to the Status of Refugees, 7 May 2002, HCR/GIP/02/01, available at:
31
For an overview of developments at the United Nations in relation to sexual minorities, see Michael O’Flaherty &
John Fisher, ‘Sexual Orientation, Gender Identity and International Human Rights Law: Contextualizing the
Yogyakarta Principles’, (2008) 8:2 Human Rights Law Review 207-48.
32
Guidance Note, above n. 26, para. 1.
 5

developed by States in their asylum decisions’.33 The substantive analysis section deals with
different elements of the 1951 Convention refugee definition: well-founded fear of persecution;
convention grounds; internal/relocation alternative; burden of proof and credibility; and sur place
claims. Ostensibly, these are the issues the UNHCR considers to be the legal questions critical to
any determination of refugee status for sexual minorities. The Guidance Note then highlights the
ways in which the refugee law analysis in those specific areas needs to account for the particular
situation of LGBT refugees. The conclusion is very brief, only one paragraph long, and it simply
reiterates several statements from the previous analysis.
It appears that the drafting process of the Guidance Note was for all intents and purposes
non-consultative.34 The UNHCR states that it sought advice from the International Association of
Refugee Law Judges; the Office of the High Commissioner for Human Rights, and a group of
lawyers from the United Kingdom.35 In addition, it held one meeting with Jenni Millbank,
Professor of Law, University of Technology Sydney, and a well-known expert in refugee law.36
Absent from this process are several key stakeholders and parties who could have provided useful
feedback to the UNHCR: NGOs working on LGBT refugee issues; additional scholars who have
conducted wide-ranging research on relevant issues; government and tribunal experts from States
that have extensive experience with such claims; and jurists familiar with the challenges in this
area of refugee law. When the author contacted the UNHCR on 2 September 2008 about
providing input into the drafting process, a response was not received until 28 November 2008,
after the Guidance Note was released publicly. The UNHCR stated that at the time they received
the query they were ‘in the process of finalizing the Note and regrettably no longer in a position
to receive further comments from outside of the UNHCR’.37
The reluctance to canvass additional stakeholders and experts is all the more difficult to
comprehend given that other UNHCR interpretive documents have previously benefited from
wider consultation. For example, from 2000-2002, the UNHCR conducted the Global
Consultations on International Protection, a series of meetings with governmental and non-
governmental experts and members of academia, the judiciary, and the legal profession, about the
meaning and content of the international protection of refugees.38 The consultations shed light on
many contentious issues and one specific outcome was the drafting of new interpretive tools such
as the UNHCR Guidelines on Membership of a Particular Social Group.39 Certainly, the drafting
process that led to the Guidance note is different in nature, scope and objectives to that of the
Global Consultations on International Protection. Less extensive and formal consultations would
have been appropriate in relation to the drafting of the Guidance Note. Nonetheless, it is difficult
to understand the UNHCR’s reluctance to consult more widely the stakeholders, scholars and
legal experts who are familiar with the issues covered in the Guidance Note. In fact, the number
of experts knowledgeable about sexual orientation and gender identity is relatively limited and

33
Ibid. para. 2.
34
Email from Jesse Bernstein, Researcher, 14 August 2009.
35
Email from the Division of International Protection Services, UNHCR, 30 July 2009.
36
Ibid.
37
Email from the Division of International Protection Services, UNHCR, 28 November 2008.
38
Feller, Türk & Nicholson, above n. 20.
39
Guidelines on International Protection No. 2: ‘Membership of a Particular Social group’ within the context of

hereinafter Guidelines on Membership. See also Fatma Marouf, ‘The Emerging Importance of “Social visibility” in
Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/02/02)

Defining a “Particular Social Group” and its Potential Impact on Asylum Claims Related to Sexual Orientation and
Gender’ (2008) 27 Yale Law and Policy Review 47-106 at 60-61.
 6

very little expense or delay would have been incurred by seeking their counsel. More
importantly, the substantive content of the Guidance Note would have unquestionably been
improved.
There are valuable and numerous references in the Guidance Note to national case law.
Yet many other publicly available sources are seldom cited. For instance, the Guidance Note
acknowledges the existence of ‘academic writing’ on sexual orientation and gender identity in the
refugee law context but almost no citations are made to such scholarly studies in the
interpretative document.40 The UNHCR may have a standard policy of drawing on academic
literature in developing and drafting its positions without however citing to specific articles.
However, as will be pointed out further on in this analysis, substantive oversights in the Guidance
Note suggest the UNHCR failed to engage with several issues well studied in the scholarly
literature.
A handful of publications by intergovernmental and non-governmental organizations are
cited but very few deal directly with issues of sexual minorities and refugee law. In addition,
when examples are provided of the range of persecutory harms faced by sexual minorities, no
supportive references are included to human rights reports.41 There are three positive references
to the 2007 Yogyakarta Principles on the Application of International Human Rights Law in
relation to Sexual Orientation and Gender Identity (Yogyakarta Principles).42 Inexplicably,
however, the specific Yogyakarta Principle which highlights the rights of persons to seek asylum
from persecution based on sexual orientation or gender identity is never mentioned.43
It is worth mentioning that the UNHCR does seem to be taking steps to further improve
the understanding of sexual orientation and gender identity issues, in addition to promoting the
Guidance Note and encouraging its implementation. For instance, in October 2009, the UNHCR
announced it would be compiling a list of selected documents relating to sexual orientation and
gender identity relevant to international refugee protection, to be posted on their website
‘Refworld.’44 Moreover, during the 2009 UNHCR/NGO Annual Consultations in Geneva, a
meeting was held on refugee protection and sexual orientation.45 It was the first time the issue
was on the agenda of the session.46 The Director of the Division of International Protection
Services at the UNHCR participated as a panel member. However, the minutes of the meeting
reveal that very little discussion was focused explicitly on the Guidance Note and as a
consequence no definite feedback was given that could serve to improve the interpretative
document in the future.47

40
Guidance Note, above n. 26, para. 2.
41
For instance, the section in the Guidance Note entitled ‘Well-founded Fear’ describes numerous examples of
persecutory acts and harm against sexual minorities, but exclusively relies on refugee caselaw and never adds
supporting human rights documentation.
42

and Gender Identity (2007), available at http://www1.umn.edu/humanrts/instree/yogyakartaprinciples2007.html

Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation

(accessed 6 April 2010). References in the Guidance Note, above n. 26, can be found at para 5 (definitions), para. 9
(human rights applicable to LGBT), and para. 12 (freedom of expression).
43
The author is grateful to Jesse Bernstein for having brought this her attention: Email from Jesse Bernstein,
Researcher, 23 June 2009.
44
Email from the Division of International Protection Services, UNHCR, 14 October 2009.
45
UNHCR, Report on UNHCR’s Annual Consultations with Non-Governmental Organizations, 29 June – 1 July
2009, available at  http://www.unhcr.org/refworld/type,CONFDOC,,,47665be32,0.html  (accessed 6 April 2010)
at 36.
46
Bernstein, above n. 43.
47
Email from John Fisher, Co-Director, Arc International, 6 July 2009.
 7

3. Analysis of the substantive content

The most significant feature of the Guidance Note is that with its release, the UNHCR has
recognized that sexual minorities have encountered a specific set of problems in having the
refugee definition applied to their claims. The importance of this development cannot be
overstated; many scholars and advocates have stated for several years that sexual minority
claimants face considerable hurdles in obtaining fair and equitable assessments of their refugee
claims. Given the prominent role the UNHCR plays in interpreting the 1951 Convention, it is
anticipated that the Guidance Note might improve the ways national courts, administrative
agencies, refugee lawyers and state officials apply the 1951 Convention definition to sexual
minorities.
It is equally noteworthy that the UNHCR begins the substantive analysis with the
following statements:‘sexual orientation is a fundamental part of human dignity’; and ‘it is now
well established that LGBT persons are entitled to all human rights on an equal basis with
others’.48 International bodies have been slow to recognize the human rights of sexual minorities
and seldom will one find comparable assertions by other United Nations agencies. It is
encouraging to see the UNHCR take an unequivocal stand on the human rights of LGBT.
At the same time, the substantive content of the Guidance Note must be critically
scrutinized. The following section will review the issues covered by the Guidance Note and
assess how well it expounds on the legal challenges facing sexual minorities. The analysis will
also identify several significant issues the Guidance Note fails to examine.

3.1 Gender

The UNHCR states at the outset that the Guidance Note ‘supplements, and should be read in
conjunction with UNHCR’s Guidelines on 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
(Gender Guidelines).49 In doing so, the Guidance Note makes a direct link to conclusions it
reached when it drafted the Gender Guidelines: gender is relevant to LGBT asylum and refugee
claims made by both men and women.
In the Gender Guidelines, the UNHCR, when enumerating situations which have typically
constituted gender-related claims, includes ‘discrimination against homosexuals’.50 The Gender
Guidelines recognize that ‘the refugee definition has traditionally been interpreted through a
framework of male experiences, which has meant that many claims of women and of
homosexuals, have gone unrecognized’.51 The UNHCR explains:
[a] claimant’s sexuality or sexual practices may be relevant to a refugee claim where he
or she has been subject to persecutory (including discriminatory) action on account of
his or her sexuality or sexual practices. In many such cases, the claimant has refused to
adhere to socially or culturally defined roles or expectations of behaviour attributed to
his or her sex. The most common claims involve homosexuals, transsexuals or

48
Ibid. para. 8-9. This positive assessment was made by Jesse Bernstein, above n. 43.
49
Gender Guidelines, above n. 30.
50
Ibid. at 2.
51
Ibid. at 2.
 8

transvestites, who have faced extreme public hostility, violence, abuse or severe or
cumulative discrimination.52
To counter this neglect, the UNHCR gender guidelines affirm that ‘refugee claims based on
differing sexual orientation contain a gender element’.53
Whilst the link to the Gender Guidelines is significant, the UNHCR should elaborate
further and describe directly in the Guidance Note the ways in which gender is relevant to all
LGBT claims. The Guidance Note does contains one paragraph outlining the importance of
gender in lesbian claims,54 and one sentence that states that ‘someone who is seeking to change or
has changed his or her sex may particularly be perceived as challenging prevailing conceptions of
gender roles.’55 But the UNHCR essentially trusts that readers will not only look up the Gender
Guidelines, but that they will locate and appreciate the relevant references to sexual orientation
and gender identity in that document. Moreover, by discussing gender chiefly in relation to
lesbians, the Guidance Note seems to erroneously suggest that it is not a significant factor in
other sexual minority claims.
Gender is an important category for all sexual minorities because society tends to
associate gender and sexual non-conformity.56 Social, political, and legal disapproval of
homosexuality is more often a reaction to the non-compliance to gender and social roles than a
simple expression of contempt for the sexual practices of homosexuals.57 Generally, gender roles
are based on a heterosexual orientation. Non-conformance with gender norms by gay men,
lesbians, bisexuals and transgendered persons implies a refusal to behave in ways dictated by
their biological sex and social classification. It is important, therefore, to define the link between
gender and sexual orientation. As Suzanne Goldberg notes:
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 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
[...].58
A society’s negative attitude toward sexual minorities is almost always closely tied to traditional
and sexist notions that also define men and women’s respective and exclusive roles.59 In fact,
laws condemning people who engage in loving and sexual relations with members of the same
sex also often uphold the traditionally defined social roles that are oppressive for women.60
From this perspective, it must be recognized that sexual minorities greatly threaten gender
and social norms. For example, as Sylvia Law maintains, lesbians and gay men, in their existence
and behaviour, ‘deny the inevitability of heterosexuality’.61 James Wilets describes sexual

52
Ibid. at 4-5.
53
Ibid. at 4.
54
For a discussion on the relevance of gender in lesbian refugee claims, see Victoria Neilson, ‘Homosexual or
Female? Applying Gender-Based Asylum Jurisprudence to Lesbian Asylum Claims’ (2005) 16 Stan. L. & Pol’y Rev
417.
55
Guidance Note, above n. 26, para. 16.
56
Simon Levay & Elisabeth Nonas, City of Friends: A Portrait of the Gay and Lesbian Community in America
(Cambridge, Massachusetts: MIT Press, 1995).
57
Sylvia Law, ‘Homosexuality and the Social Meaning of Gender’ (1988) 2 Wis. L. Rev. 187 at 187.
58
Suzanne Goldberg, ‘Symposium—Shifting Grounds for Asylum: Female Genital Surgery and Sexual Orientation’
(1998) 29 Colum. H.R.L. Rev. 467 at 496.
59
Law, above n. 57 at 221.
60
Ibid. at 228.
61
Ibid. at 210.
 9

minorities as ‘gender outlaws’.62 He states the following: ‘[s]exual minorities are also gender
outlaws in the sense that their very existence as identifiable minorities is not based upon the
sexual acts in which they participate, but rather on their relationship to the spectrum of gender
conformity’.63 According to Wilets, non-conformity to gender and social roles by gay men and
lesbians is the basis of persecution and discrimination. Men and women who display homosexual
tendencies or adopt gender identities other than those prescribed by their societies have generally
been penalized when their activities violate the ‘norms of male supremacy’.64
Another aspect of the intersection of sexual orientation and gender involves the agents of
persecution. When a society’s views about gender roles are reflected in violence against women
and sexual minorities, this violence is often committed by individuals who do not represent the
State.65 Violent acts such as rape, assault, and torture are employed to pressure both women and
sexual minorities to conform to society’s gender roles. In addition, persecution of women and
sexual minorities serves not only to pressure for conformity, but it also to intimidate by making
examples of abused women and sexual minorities.
The intersection of gender and sexual orientation should therefore be an integral part of
many assessments of sexual orientation and gender identity claims. Yet several scholarly studies
have concluded that decision makers rarely make the link between gender and sexual orientation
and gender identity.66 The Guidance Note, by omitting to overtly explain the connection, misses
an important opportunity to elucidate why gender should be taken into account.
The Guidance Note also fails to fully develop the link between gender and the situation of
transgender and intersex refugee claimants. In a very brief mention, the UNHCR states that
transgender persons ‘will often have distinct experiences of persecution’, and may be ‘perceived
as challenging prevailing conceptions of gender roles’.67 It would be useful to clearly reference
the fact that in all traditional and patriarchal societies, in which non-conformity to clearly defined
gender roles is not tolerated, people who identify as the opposite sex, who habitually wear the
clothing or adopt the customs of the opposite sex, or who possess physical attributes of both
sexes, have reason to fear persecution. Transgendered and intersex people are indisputably
perceived as a threat to gender and social norms: they take on appearances and behaviours
completely opposite to those generally expected by society.
In addition, some decision makers have difficulty distinguishing ‘sexual orientation’ from
‘gender identity’, and as a consequence, cases may omit relevant gender-specific analyses.68 For

62
James D. Wilets says: ‘Gendered violence is frequently the consequence of perceived threats to a male dominated
societal system by groups that do not conform to the norms appropriate for the continuation of such a system’:
‘Conceptualizing Private Violence Against Sexual Minorities as Gendered Violence: An International and
Comparative Law Perspective’ (1997) 60 Alb. L. Rev. 989-1050 at 992.
63
Ibid. at 1011.
64
Ibid. at 992.
65
Ibid. at 991. See also Goldberg, above n. 58 at 500.
66
Jenni Millbank, ‘Gender, Sex and Visibility in Refugee Claims on the Basis of Sexual Orientation’ (2003) 18:1
Georgetown Immigration Law Journal 71-110; Jenni Millbank, ‘Imagining Otherness: Refugee Claims on the Basis
of Sexuality in Canada and Australia’ (2002) Melbourne University Law Review 144-177; Nicole LaViolette, above
n. 10.
67
Guidance Note, above n. 26, para. 16. For a discussion of the relevance of gender in a transgender refugee claim,
see Jason Cox, ‘Redefining Gender: Hernandez-Montiel v. INS’, (2001) 24:1 Houston Journal of International Law
187-207.
68.
U.J.J.(Re), [1999] C.R.D.D. No. 45 (QL); But in other cases the distinction is clearly identified: see N.(O.I.)(Re),
[1995] C.R.D.D. No. 11 (QL); F.L.V.(Re), [1999] C.R.D.D. No. 125 (QL); B.D.K.(Re), [2000] C.R.D.D. No. 72
(QL).
 10

example, a Lebanese claimant testified before the Canadian Immigration and Refugee Board that
he was born a female but has dressed and acted like a male since childhood.69 Furthermore, he
has undergone a mastectomy and hormone treatments to change his biological sex. Members of
the Board considered him to be transsexual, but they suggested that his case fell under ‘sexual
orientation’: ‘I find the claimants' evidence regarding the claimant's sexual orientation, as an
FTM transsexual who has begun the process of gender reassignment, to be credible’.70 In fact, it
wasn’t the claimant’s sexual orientation that was raised (he considered himself heterosexual) but
rather his gender identity, that is, the fact that he was in the process of changing his sex. The
UNHCR Note does state that ‘transgender does not imply any specific form of sexual
orientation’ in the introductory paragraphs of the Guidance Note, but it is suggested that the issue
warranted a specific discussion in the substantive section of the document, with an explanation
on how the conceptual framework related to gender should be applied in such cases.71

3.2 Well-founded fear of persecution

In order for a claimant to be granted the status of 1951 Convention refugee, he or she must
establish a well-founded fear of persecution based on one or more of the five enumerated grounds
and the inability to obtain the protection of her country of nationality or habitual residence. 72 The
notion of persecution is at the heart of the definition of a refugee and sexual orientation or gender
identity refugee claims can often turn on the legitimacy of a claimant’s well-founded fear of
persecution.
The Guidance Note does a commendable job of canvassing the different forms of
persecution that sexual minorities may confront. It highlights the different forms of physical and
sexual violence facing many LGBT persons, including ‘forms of family and community
violence… that would fall within the definition of torture’.73 Lesser forms of violence are
described, such as ‘harassment, threats of harm, vilification, intimidation, and psychological
violence that car rise to the level of persecution’.74 Examples of discriminatory measures
amounting to persecution are provided; for instance, the Guidance Note suggest that the denial of
access to normally available services such as education, welfare, health, and the judiciary, may
give rise to a reasonable fear of persecution.75 The UNHCR also acknowledges that social,
cultural and other restrictions can compel sexual minorities to conceal their sexual orientation or
gender identity, enter into forced heterosexual marriages or relations, or prevent the
establishment of meaningful relationships, all of which may reach the threshold of persecution.76
In addition, the Guidance Note sets aside any suggestion that medical abuse or forced marriages,
inflicted on LGBT persons with the intention of ‘curing’ or ‘treating’ them, is anything other than
persecution.77
69.
U.J.J (Re)., ibid.
70.
Ibid.
71
Guidance Note, above n. 26, para. 6.
72
1951 Convention, above n. 27, art. 1..A (2).
73
Guidance Note, above n. 26, para. 14.
74
Ibid.
75
Ibid, para. 11.
76
Ibid. para 12-13.
77
Ibid. para. 28. In Pitcherskaia v. I.N.S., the U.S. Board of Immigration Appeals ‘found that the Russian militia and
psychiatric facilities intended to “cure”’ a lesbian refugee claimant, and therefore she did not face persecution:
Kristie Bowerman, ‘Pitcherskaia v. I.N.S.: The Ninth Circuit Attempts to Cure the Definition of Persecution’, (1997)
7 Law & Sexuality 101-111 at 102-03. See also Ryan Goodman, ‘The Incorporation of International H
 11

The refugee law requirement that the harm feared by a refugee claimant be serious has led
to a distinction between persecution, on one hand, and discrimination, on the other. In relation to
sexual orientation and gender identity claims, there is an increasing tendency for decision makers
to focus their analysis on whether a sexual minority claimant would be subjected to the less
serious harm of discrimination. Whilst the Guidance Note acknowledges that persecution can be
manifested by a series of discriminatory acts and that sexual minorities may face a series of
discriminatory measures that cumulatively cause substantial prejudice, for instance “where a
LGBT person is consistently denied access to normally available services, be they in his or her
private life or workplace, such as education, welfare, health, and the judiciary,”78 it fails to
distinctly chart the emerging focus on discrimination in sexual minority refugee claims, other
than mentioning that ‘the element of discrimination is often central to claims made by LGBT
persons’.79
This is an unfortunately brief reference to an issue that is becoming critical in many cases.
For instance, in Canada, only a few refugee claims based on sexual orientation or gender identity
raised the distinction between discrimination and persecution before 1998.80 Yet in the last ten
years, Canadian decision makers have increasingly evaluated evidence to determine whether a
sexual minority claimant would be subjected to persecution or to the less serious harm of
discrimination.81
One reason for the increased relevance of this distinction is the fact that in several
countries, the social, political, and legal situation of sexual minorities has been changing. Whilst
some countries continue to seriously repress homosexuality, bisexuality and transexuality, other
countries are becoming more accepting of sexual diversity. As Arthur Leonard has suggested in
relation to a U.S. case, ‘the changing conditions for gay people in areas where there had formerly
been ground grounds to support asylum claims’ make it more difficult to sustain claims of
persecution.82
The Guidance Note fails to explicitly link evidentiary obstacles facing sexual minority
claimants to increasing challenge of proving that they meet the threshold of persecution rather
than discrimination. A significant hurdle is indeed the fact that independent human rights
documentation continues to be difficult to obtain for many parts of the world. This in turn means
that assessments of whether a particular country’s conditions constitute discrimination rather than
persecution is sometimes based on little objective evidence. Moreover, some decision makers
may continue to reason, as they did in the early sexual orientation and gender identity claims, that
the scarcity or absence of reports evidences a lack of persecution.83 Yet Amnesty International

78
Guidance Note, above n. 26, para. 11. 79 Ibid. para. 10.
79
Ibid. para. 10.
80
Re D.C.J. [1995] C.R.D.D. No. 86 (QL); Re N.K.O. [1996] C.R.D.D. No. 238 (QL); Re U.Y.O., [1996] C.R.D.D.
No. 163 (QL); Re C.L.Q., 1996] C.R.D.D. No. 145 (QL); and Re U.V.G. [1997] C.R.D.D. No. 250 (QL).
81
See N. LaViolette, ‘Independent Human Rights Documentation and Sexual Minorities: An Ongoing Challenge for
the Canadian Refugee Determination Process’ (2009) 13:2/3 International Journal of Human Rights 437-476 at 450-
454.
82
Arthur Leonard, ‘9th Circuit Rejects Asylum Petition from Gay Ukrainian’, Lesbian/Gay Law Notes, 22 April
2002, 59.
83
This appears to have been the case in a decision reviewed by the Federal Court of Canada, where the decision
maker examined the independent country information and concluded that: ‘…if violence against homosexuals was
serious and widespread, it would have appeared in the United States’ Department of State Report on Human Rights,
Amnesty International Reports or the Human Rights Watch World Report. Since violence against homosexuals was
not mentioned in any of these three reports, the Board concluded that it was not a serious and widespread problem in
Hungary’: A.J.M. v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J. No. 142 para. 9 (QL). For a
 12

has warned that ‘lesbians and gay men who have experienced torture or ill-treatment may not
have access to documented evidence of their personal experiences’ and abuses are not well
documented in most countries.84
The Guidance Note, by failing to specifically scrutinize this trend, offers little guidance
on how to determine the distinction between discrimination and persecution. Considering the
comparatively recent mainstream attention given to persecution based on sexual orientation and
gender identity, and the ongoing challenges in documenting human rights abuses, the Guidance
Note should have suggested refugee claims decision makers be careful to avoid drawing
conclusions that claimants face discrimination rather than persecution.85 Decision makers must
‘take into account reasons why reports of persecution may be unavailable’.86
The UNHCR does accurately recognize in the Guidance Note that decision makers are
increasingly interested in assessing the persecutory impact of laws criminalizing homosexual
conduct. The Guidance Note is clear that decision makers are required to analyse the scope,
impact and enforcement of laws that criminalize same-sex conduct.87 Rather than focusing on the
actual number of prosecutions, what is required is specific information about how criminal
sanctions reinforce persecutory social environments and destroy opportunities for sexual
minorities to seek protection from state authorities. Criminal laws, whether enforced or not, can
result in LGBT abstaining from same-sex relationships or applying severe restrictions to their
social life and personal identity in order to prevent arrests, extra-legal detention, harassment,
extortion or prosecutions. The UNHCR further underlines that in countries where homosexual
practices neither are criminalized nor enforced, other laws may be directed at suppressing
homosexuality, such as sanctions relating to public morality or prosecutions ‘for crimes of rape,
child molestation or drug-related crimes’.88
The UNHCR makes another significant point in relation to laws that criminalize same-sex
conduct. The Guidance Note acknowledges that if such laws exist in the country of asylum, this
may impede LGBT applicants from accessing refugee determination procedures. 89 Jesse
Bernstein suggests however that the problem may be more significant that the Guidance Note
suggests, in that social attitudes and stigma may also deter LGBT asylum seekers from making
claims or seeking protection when needed. According to Bernstein, whilst the UNHCR
acknowledges it may be necessary for it to become involved in such cases, the Guidance Note
fails to outline what the UNHCR’s response would be to such situations: should LGBT applicant
be considered for resettlement in light of criminal sanctions on same-sex relations or serious
social repression? Or should special protection measures be undertaken to ensure that LGBT
applicants can access asylum processes, especially in homophobic contexts?90
The UNHCR does deal unfalteringly with a contentious issue that has surfaced directly or
implicitly in the national case law of several States. A distinction has been made between discreet

discussion of how this has been an issue in Australian cases, see Ghassan Kassisieh, From Lives of Fear to Lives of
Freedom: A Review of Australian Refugee Decisions on the Basis of Sexual Orientation (Sydney: Gay & Lesbian
Lobby, 2008).
84

(London: Amnesty International, 2001), at p.33, available at 

Amnesty International, Crimes of Hate, Conspiracy of Silence: Torture and Ill-treatment Based on Sexual Identity

http://www.amnesty.org/en/library/info/ACT40/016/2001 (accessed 6 April 2010) at 27.

85
Kassisieh, above n. 83, at 38.
86
Ibid. at 37.
87
Guidance Note, above n. 26, para. 17-22.
88
Ibid., para. 17, 21.
89
Ibid., para. 22.
90
Bernstein, above n. 43.
 13

and non discreet homosexuals, and some decision makers have suggested that sexual minority
refugee claimants could be required to take reasonable steps to avoid persecutory harm by
conducting their personal lives discreetly. For example, the distinction made between discreet
and non discreet homosexuals arose in a series of Australian cases where it was accepted that gay
and lesbian asylum seekers could avoid persecution by not drawing public attention to their
sexual orientation.91 Despite a 2003 Australian High Court decision which rejected the
‘discretion’ approach, Jenni Millbank has found that ‘decision makers in both Australia and the
UK have been slow … to apply the insight that gay people are secretive about their sexuality and
relationships as a result of oppressive social forces rather than by “choice”’.92 Toni Johnson is
also of the view that U.K. decision makers continue to apply a ‘discretion’ analysis in rejecting
LGBT claimants.93 The issue has surfaced indirectly or implicitly in some Canadians decisions as
well.94
The Guidance Note is explicit and clear on this issue: being compelled to forsake or
conceal one’s sexual orientation and gender identity may in and of itself amount to persecution.95
In addition, the UNHCR underlines that it is never a condition of protection that a claimant be
required to take steps to conceal either their political opinions, religious beliefs, membership in a
particular social group, or their race or nationality to avoid persecution. According to the
UNHCR, ‘there is no duty to be “discreet” or to take certain steps to avoid persecution, such as
living a life of isolation, or refraining from having intimate relationships’.96 In fact, the Guidance
Note states that insisting on discretion would ‘amount to requiring the “same submissive and
compliant behaviour, the same denial of a fundamental human right, which the agent of
persecution seeks to achieve by persecutory conduct”.’97 The UNHCR essentially concludes it is
immaterial whether the conduct of the claimant discloses his or her identity as a homosexual and
attracts the attention of the agents of persecution.

91
RRT Reference V96/05496; RRT Reference N97/14489; RRT Reference N98/21362; RRT Reference N98/24718;
RRT Reference N98/23955; Khalili Vahed v Minister for Immigration and Multicultural Affairs [2001] FCA 1404 -
on appeal SAAF v Minister for Immigration and Multicultural Affairs [2002] FCA 343; Nezhadian v Minister for
Immigration and Multicultural Affairs [2001] FCA 1415; WABR v Minister for Immigration and Multicultural
Affairs (2002) 121 FCR 196. See Catherine Dauvergne & Jenni Millbank, ‘Before the High Court: Applicants
S396/2002 and S395/2002, a Gay Refugee Couple from Bangladesh’ (2003) 25 Sydney L. Rev. 96-124; Christopher
N. Kendall, ‘Lesbian and Gay Refugees in Australia: Now that ‘Acting Discreetly’ is no longer an Option, will
Equality be Forthcoming?’ (2003) 15:4 International Journal of Refugee Law 715-49. In the 2003 decision, the High
Court of Australia examined the definition of a particular social group in relation to gay and lesbian refugee
claimants. The High Court rejected a lower court approach which broke the genus of ‘homosexual males’ into two
particular social groups - discreet and non-discreet homosexual males. The Australian High Court concluded that this
approach resulted in a failure to consider the issue of persecution in relation to the correct ‘particular social group’,
namely all gay men or all lesbian women: Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs
[2003] HCA 71 (9 December 2003) [S395/2002].
92
Jenni Millbank, ‘From Discretion to Disbelief: Recent Trends in Refugee Determinations on the Basis of Sexual
Orientation in Australia and the United Kingdom’ (2009) 13: 2-3 The International Journal of Human Rights 391-
414 at 392.
93
Toni A.M. Johnson, ‘Flamers, Flaunting and Permissible Persecution’ (2007) 15 Feminist Legal Studies 99-111.
94
See Taheri v. Canada [2001] F.C.J. No. 1252 (QL) (only gays and lesbians who are very public face a risk of
persecution); Serrano v. Canada [1999] F.C.J. No. 1203 (QL) (claimant did not fall into groups that risks
persecution, such as visible or high profile gay activists); Lara v. Canada [1999] F.C.J. No. 264 (QL); L.J.v. Canada
[1996] F.C.J. No. 1042 (QL).
95
Guidance Note, above n. 26, para. 12, 25.
96
Ibid. para. 26.
97
Ibid. para. 26, citing National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and
Others, 1998 (12) BCLR 1517 (CC), 9 October 1998 (Constitutional Court of South Africa) para.113.
 14

The Guidance Note further acknowledges that some LGBT claimants might not have
experienced harm in the past, either because they concealed their sexual orientation or gender
identity or only came to terms with it in the country of asylum.98 According to the UNHCR,
‘the well-foundedness of the fear will in such cases be based on the assessment of the
consequences that an applicant with a certain sexual orientation would have to face if he or she
returned’ to their country of origin.99

3.3 Convention grounds

In order for claimants to be considered Convention refugees, they must establish that they fear
persecution on the basis of their political opinions, race, religion, nationality, or membership in a
particular social group. When LGBT claims were first adjudicated in the early 1990s, decision
makers in several States debated whether sexual minorities fit any of the criteria set out in the
1951 Convention definition of refugee. In a decision in the United Kingdom, for example,
homosexuals were excluded from the ‘particular social group’ category because they did not
constitute a minority group with historical and cultural characteristics.100 In Canada, a decision
maker refused to recognize homosexuals as forming a ‘particular social group,’ concluding that
the failure of the Universal Declaration on Human Rights to mention sexual orientation was
indicative of the fact that homosexuality is not afforded protection as a fundamental human right.
Moreover, according to the same Canadian decision maker, the 1951 Convention definition of
refugee was not meant to displace the ‘historical order’ which prohibits homosexuality for moral
and religious grounds.101
The UNHCR acknowledges in the Guidance Note that in many countries the question of
whether Convention grounds encompasses sexual orientation and gender identity has now been
properly resolved by extending refugee status to sexual minorities primarily because of the
persecution individuals feared they would be subjected to as members of a particular social
group.102 The Guidance Note also rightly refers to the fact that a claimant does not actually have
to be a member of the particular social group; it is sufficient that the agents of persecution believe
the person to be a member of the particular social group.103 The Guidance Note further suggests
that sexual orientation or gender identity cases may also be analysed in relation to other

98
Guidance Note, above n. 26, para. 23.
99
Ibid. para. 24.
100
Derek McGhee, ‘Persecution and Social Group Status: Homosexual Refugees in the 1990s’ (2001) 14:1 Journal
of Refugee Studies 20-42 at 23.
101
See Re. R. (U.W.) [1991] C.R.D.D. No. 501 (QL). In another Canadian case, the Universal Declaration on Human
Rights is interpreted to recognize heterosexuality as the ‘very foundation of society’, and homosexuality is
considered clearly incompatible with this established order: Re X. (J.K.) [1992] C.R.D.D. No. 348 (QL).
102
Guidance Note, above n. 26, para. 32.
103

the Federal Court of Canada to claims based on sexual orientation in Dykon v. Canada: 1994] F.C.J. No. 1409.
Ibid. para. 7, 29. In addition to the cases mentioned by the UNHCR in a footnote, this principle was applied by

(QL). In that case, the claimant based his claim partly on his fear that he would be persecuted on the grounds of
sexual orientation. He told the Board that he had been raped by two Ukrainian men after they confronted him about
speaking Russian in a café. The claimant stated he believed that the two men, who had photographed the assault, had
spread rumours about the attack. As a consequence, some people believed him to be gay and subjected his mother
and him to harassment. The Federal Court Trial Division stated that ‘it is totally irrelevant . . . whether he was in fact
a homosexual or not’. It is the beliefs of the persecutors that are important, and in this case the individuals
responsible for the harassment perceived the claimant to be a homosexual.
 15

Convention grounds such as political opinion or religion, though most claims have been
considered within the ‘membership of a particular social group’ ground.104
Whilst the Guidance Note properly conveys that sexual orientation and gender identity are
encompassed in several Convention grounds, and that membership may also be imputed, the
UNHCR nevertheless fails to comprehensively discuss several issues relating to the scope of the
particular social group. The UNHCR does points out that ‘while claims relating to bisexuals
and transgender people have been less common, such groups may also constitute a particular
social group’.105 Yet it fails to include intersex individuals who may be persecuted for having
physical and sexual attributes of both sexes.106 In addition, Sean Rehaag has canvassed the
specific problems facing bisexual claimants in the U.S., Australia and Canada, and he identifies
trends that suggest that bisexuality may be poorly understood by refugee decision makers.107 For
example, the Australian Refugee Tribunal rejected a Pakistani man’s claim to be bisexual,
concluding that his relationship with another man whilst in detention was ‘simply the product of
the situation, where only partners of same sex are available, and says nothing about his sexual
orientation’.108 Unfortunately, the Guidance Note fails to address bisexuality or intersexuality in a
comprehensive way.
There is also a failure to address trends in national case law that may eventually
undermine the recognition of LGBT as constituting particular social groups. One such trend has
been identified by immigration and refugee lawyer Fatma Marouf. She has examined the new
emphasis on ‘social visibility’ in U.S. refugee law and its potential impact on refugee claims
based on sexual orientation. While Marouf’s article was published in early 2009 just after the
release of the Guidance Note, the UNHCR was aware of this trend in U.S. refugee law as the
organisation submitted an amicus brief in December 2007 challenging the use of ‘social
visibility’ in one of the U.S. cases cited by Marouf.109
The standard approach to defining a social group adopted by the UNHCR incorporates
two approaches.110 First, decision makers must query whether a group can be defined by a
characteristic that is innate or unchangeable, or that is fundamental to identity of conscience. This
is the traditional ‘protected characteristic test’. However, if the characteristic of a social group is
determined to be neither unalterable or fundamental, decision makers then turn their minds to the
‘social perception test’ and enquire whether the group is nonetheless perceived as a cognisable
group in that society. For the UNHCR, the two approaches constitute an alternative, sequential
test.111

104
Guidance Note, above n. 26, para. 29-32. See Re J. (F. H.) [1993] C.R.D.D. No. 98 (QL) (claimant also based
fear of persecution on political opinion); Re V. (O. Z.) [1993] C.R.D.D. No. 164 (QL); Re E. (Q. R.) [1993] C.R.D.D.
No. 331 (QL) (claimant also based fear of persecution on the grounds of political opinion and religion).
105
Guidance Note, above n. 26, para. 32.
106

Christopher Clarey, ‘Gender Test After a Gold-Medal Finish’ The New York Times, 19 August 2009, available at 
The recent case of South African athlete Caster Semenya highlights the challenges facing intersex individuals:

http://www.nytimes.com/2009/08/20/sports/20runner.html (accessed 6 April 2010).

107
See Sean Rehaag, Bisexuals Need Not Apply: a Comparative Appraisal of Refugee Law and Policy in Canada, the
United States, and Australia (2009) 13:2 Int’l J. Hum. Rts 415-436; Sean Rehaag, Patrolling the Borders of Sexual
Orientation: Bisexual Refugee Claims in Canada, (2008) 53 McGill L.J. 102.
108
Caro Meldrum, ‘Refugee Review Tribunal “Homophobic”: Detainee’ ABC, 18 May 2007, available at
http://www.abc.net.au/news/newsitems/200705/s1927091.htm.
109
Marouf, above n. 39 at 65.
110
Guidelines on Membership, above n. 39.
111
Marouf, above n. 39 at 61.
 16

By contrast, recent U.S. cases put forward a new approach that diverges from the
UNHCR’s sequential test, and from the ‘protected characteristic’ approach previously followed
by U.S. decision makers.112 According to Marouf, the U.S. cases suggest that a particular social
group is to be recognized only if it meets both the traditional ‘protected characteristic test’ as well
as a ‘social visibility test’.113 In addition to putting forward the two approaches as dual
requirement, the cases also suggests that the ‘social perception’ test focus on whether members of
the group are visible, rather than on the distinctiveness of the group as a whole.114
Marouf persuasively argues that the new emphasis on social visibility in U.S. refugee law
could negatively impact sexual orientation claims. ‘Unlike some characteristic or traits,’ Marouf
argues, ‘sexual orientation is not externally visible, and sexual minorities often feel compelled to
hide their orientation for various reasons’.115 She rightly concludes that ‘by requiring social
visibility to establish a particular social group, the BIA neglects the ways that invisibility forms a
core part of the experience of oppression’ for sexual minorities.116 Marouf is properly concerned
that the new trend in U.S. law could impact on the recognition of sexual orientation as the basis
for a social group. She mentions as an example an unpublished decision that ‘used the ‘social
visibility’ test to limit the circumstances under which persons with an immutable characteristic
constitute a ‘particular social group’.117 The approach could further marginalize specific minority
groups; whilst gay, lesbian and transgender movements are slowly emerging in many countries
around the word, bisexuals and intersex individuals may not benefit from such developments and
may fail to meet the burden of the ‘social visibility’ test.
The Guidance Note’s reference to any debate on this question is limited to two brief
sentences. First, the UNHCR states, it is ‘well established that sexual orientation can be viewed
as either a innate and unchangeable characteristic, or as a characteristic that is so fundamental to
human dignity that the person should not compelled to forsake it’.118 The UNHCR seems to be
suggesting, without saying so explicitly, that it is unnecessary to proceed to the second,
alternative way of determining the existence of a social group, that is to say by assessing the
social perception of the group in society. But rather than making this assertion outright, the
Guidance Note concludes the section with the following sentence: ‘Requiring a person to conceal
his or her sexual orientation and thereby give up those characteristics, contradicts the very notion
of particular social group as one of the protected grounds in the 1951 Convention’.119
The reference to discretion fails to accurately elucidate the problem Marouf identified in
U.S. refugee law. It is true, as explained previously, that discretion has been a contentious issue
in the context of the persecution requirement of the 1951 Convention definition. In those cases,
decision makers conclude that a gay or lesbian claimant does not have a well-founded fear of
persecution because they are required to act discreetly and conceal themselves from the agents of
persecution. But the problem in relation to the ‘particular social group’ definition is different. If
the U.S. approach is applied to sexual orientation cases, claimants are unable to link their fear of
persecution to one of the five grounds in the refugee definition, specifically the particular social

112
The ‘protected characteristic’ test was adopted in 1985 by the United States Board of Immigration Appeals in its
decision Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A.) (1985).
113
Marouf, above n. 39 at 67.
114
Ibid. at 64.
115
Ibid. at 79
116
Ibid. at 79.
117
Ibid. at 88.
118
Guidance Note, above n. 26, para. 32.
119
Ibid.
 17

group ground, because the secrecy of the members of the group ensures it is not socially visible
in society. Undoubtedly, a discussion of this troubling development in U.S. law could have
helped guide future decisions and avoid a future inappropriate application of the ‘social visibility’
test to sexual minority cases. At the very least, the Guidance Note should have referred readers to
the UNHCR Guidelines on Membership in a Particular Social Group where the alternative,
sequential test is clearly spelt out.

3.4 Burden of proof and credibility

Since gay, lesbian, bisexual and transgender claimants generally assert that they are members of a
‘particular social group’, one of the legal elements to be satisfied is the claimant’s membership in
that group. Assessing the veracity of the claimant’s sexual orientation or gender identity is a very
difficult, sensitive and complex task in the context of an administrative or quasi-judicial hearing.
In particular, the very private and intimate nature of an individual’s sexual orientation or gender
identity poses real challenges for decision makers, who are nonetheless required to examine the
claimants’ personal lives and relationships.
Few LGBT claimants are able to provide conclusive documentary or witness evidence to
confirm their membership in the particular social group.120 Therefore, one element in particular
will be most determinative in establishing whether the claimant is a member of the particular
social group: the claimant's credibility. The Guidance note suggest that ‘while some applicants
will be able to provide proof of the LGBT status, for instance through witness statements,
photographs or other documentary evidence’, others may be unable to provide evidence.121 In
such cases, the Guidance Note suggest that ‘self-identification as LGBT should be taken as an
indication of the individual’s orientation’ and, referring to the UNHCR Handbook, affirms that
‘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’.122
The UNHCR further underlines how important it is to avoid relying on stereotypical
perceptions of sexual minorities in determining their membership in the particular social group,
‘such as expecting a particular ‘flamboyant’ or feminine demeanour in gay men, or ‘butch’ or
masculine appearance in lesbian women’.123 Decision makers should be very cautious about
assessing a claimant’s membership in a particular social group based on mannerisms, dress,
appearance and manner of speaking. Determinations of ethnicity cannot be based on the physical
appearance of a claimant if such observations are not supported by expert evidence,124 and neither
should the determination of a claimant’s sexual orientation or gender identity.

120
Barry O’Leary discusses the difficulty of proving sexual identity in the context of UK refugee law: Barry
O’Leary, ‘We Cannot Claim Any Particular Knowledge of the Ways of Homosexuals, Still Less of Iranian
Homosexuals…’: The Particular Problems Facing Those Who Seek Asylum on the Basis of Their Sexual Identity’
(2008) 16 Fem. Leg. Stud. 87-95. See also Derek McGhee, ‘Accessing Homosexuality: Truth, Evidence and the
Legal Practices for Determining Refugee Status – The Case of Ioan Vraciu’ (2000) 6:1 Body & Society 29-50.
Claimants themselves will sometimes provide supporting evidence of their sexual orientation, including asking their
partners, families or friends to testify at the refugee hearing; providing photographs or videos of partners or activities
in the gay, lesbian, bisexual, or transgender communities; submitting letters or proof of membership in gay, lesbian,
bisexual, and transgender organizations; and presenting medical and psychological reports.
121
Guidance Note, above n. 26, para 35.
122
Ibid., para 35.
123
Ibid., para. 36.
124
See Immigration and Refugee Board, Refugee Protection Division, Legal Services, Assessment of Credibility in
Claims for Refugee Protection (28 June 2002) at p. 30 and at note 109 [Assessment].
 18

The Guidance Note’s statements on stereotyping could have been further reinforced by
explaining that there are no universal characteristics and qualities that typify sexual minorities.
This is particularly true of the multinational and multicultural context of the refugee hearing
room where stereotypical views of sexual minorities are even more likely to be inaccurate and
misleading when applied to a different cultural context. Jenni Millbank, for instance, has
documented a troubling trend in Australian case law where decision makers doubt or disbelieve
the sexual identity of refugee applicants when they do not fit ‘highly stereotyped and westernised
notions of “gayness”’.125 Barry O’Leary claims similar problems exist with some U.K. decision
makers126 and cases in the U.S. and Canada have also relied on highly problematic stereotypes.127
In response, the UNHCR needs to underline that the experience of sexual minorities around the
world is tremendously diverse and different.128 Human sexuality is strongly influenced by social,
cultural, religious, and even political environments. It is also an aspect of human experience that
is poorly understood and tremendously repressed in many countries. Given the diversity of the
global context, it is indeed dangerous to make assumptions about the lives of members of a
sexual minority.
Credibility may also be at issue if gay and lesbian claimants have had heterosexual
relationships or marriages. Whilst the Guidance Note suggests that ‘a person should not
automatically be considered heterosexual merely because he or she is, or has been, married, has
children’, it fails to pursue this point and make an explicit link to bisexuality. In Valoczki c.
Canada,129 the Federal Court of Canada categorized as an error an omission to consider the very
real possibility that the claimant was bisexual. According to the court, where relevant, decision
makers should also consider whether a claimant is bisexual, rather than only examining the
exclusive homosexual or heterosexual orientation of the claimant. Moreover, references to LGBT
being forced into arranged marriages or subjected to extreme pressure are made exclusively in the
section on persecution despite being relevant to credibility issues in the context of establishing
membership in a particular social group.130
The Guidance Note also raises issues surrounding the appropriate enquiries and interview
techniques in relation to questioning of sexual minority claimants. The Guidance Note
recommends that LGBT claimants be ‘interviewed by trained officials who are well informed
about the specific problems LGBT persons face’.131 It is further suggested that measures be
adopted to ensure awareness of LGBT issues, including targeted training sessions.132 The

125
Millbank, above n. 92 at 392.
126
O’Leary, above n. 120 at 89-91.
127
See In Re Vega Soto, discussed in Fadi Hanna, ‘Punishing Masculinity in Gay Asylum Claims’ (2005) 114 The
Yale Law Journal 913 and in Stephen Pischl, ‘Circumventing Shari’a: Common Law Jurisdicutions’ Responses to
Persecuted Sexual Minorities’ Asylum Claims’ (2006) 5 Wash. U. Global Stud. L. Rev. 425 at 438-439; Trembliuk v.
Canada (Minister of Citizenship and Immigration) [2003] F.C.J. No. 1590 (QL) (the Federal Court of Canada found
that the tribunal had wrongly relied on stereotypes about gay men in rejecting a Ukrainian teenager’s refugee claim).
128
See Peter Drucker, ed., Different Rainbows (London: Gay Men’s Press, 2000); Gilbert Herdt, Same Sex
Different Cultures (Boulder, Colorado: Westview Press, 1997); Stephan Lokosky, ed., Coming Out: An Anthology
of International Gay and Lesbian Writings (New York: Panthon Books, 1992); Neil Miller, Out in the World (New
York: Random House, 1992).
129
[2004] F.C.J. No. 612 (QL).
130
Guidance Note, above n. 26, para. 13.
131
Ibid, para 37.
132
Ibid, para. 37. This should include avoiding appointing decision makers with clear biases against homosexuality
as was recently done in Canada: Elizabeth Thompson, ‘Fire Anti-Gay Appointee’, Edmonton Sun, 18 March 2009,
available at  http://www.edmontonsun.com/news/canada/2009/03/18/8791266-sun.html  (accessed 6 April 2010).
 19

UNHCR could have referenced best practices at this point, namely the recurring training
conducted by the Canadian Immigration and Refugee Board on sexual orientation and gender
identity,133 and a 2008 session recently held by the Australian Refugee Review Tribunal in
Melbourne.134 In addition, the Guidance note should make reference to the fact that sexual
minority claimants may have been the victims of sexual assault at the hands of the agents of
persecution. Similar to the sexual assault of women, rape is used as a tool to torture, humiliate
and degrade lesbians and gay men. Questioning surrounding such events should be conducted
with the same sensitivity as in the case of sexual assault victims more generally.
A final point made in this section refers to difficulties claimants may have in discussing
their sexual orientation or gender identity. The UNHCR notes that a claimant ‘can be reluctant to
talk about such intimate matters, particularly where his or her sexual orientation would be the
cause of shame or taboo in the country of origin’.135 Indeed, for sexual minorities, sexual
orientation and gender identity issues may carry with it a sense of shame, self-hating and
embarrassment given the very personal and private nature of the topic. In many countries,
repression against sexual minorities is state sponsored or encouraged, so it is difficult for many to
imagine that state officials could possibly be anything less than hostile to discussions of
homosexuality. Indeed, some individuals believe that to speak frankly about their intimate life
and sexual orientation would only prejudice their case and exclude them from the refugee
protection system. For instance, some gay and lesbian claimants have indicated that concerns
about negative repercussions to their coming out explain either delays in applying for refugee
protection or omissions in first mentioning sexual orientation as a basis for their fear of
persecution.136 The Guidance Note properly suggests that ‘even where the initial submission for
asylum contains false statements, or where the application is not submitted until some time has
passed after the arrival to the country of asylum, the applicant can still be able to establish a
credible claim’.137

3.5 State protection

International refugee law was designed to reinforce protection individuals may receive from their
own countries. In order to meet the Convention definition of a refugee, a person must be unable
or, owing to a well-founded fear of persecution, must be unwilling to avail himself of the
protection of the country of nationality. The UNHCR suggests that the term ‘unable’ refers to ‘a
state of war, civil war or other grave disturbance, which prevents the country of nationality from
extending protection or makes such protection ineffective.’138 It is also possible that the inability
arises from the denial of protection by the country of nationality. Where a claimant is ‘unwilling’
133
Until recently, Canada’s administrative tribunal was the only such body to have regularly offered professional
development training on these issues and to produce in-house human rights information on the situations of sexual
minorities in different countries.
134
Email from Kristen Walker, Barrister, 19 March 2008; ‘Refugee Review Tribunal to Develop Sexuality Training’,
15 June 2007, available at http://www.abc.net.au/news/stories/2007/06/15/1952753.htm?site=news (accessed 6
April 2010).
135
Guidance Note, above n. 26, para. 38.
136
In some cases, claimant’s concocted false stories rather than based their refugee claims on sexual orientation.
See Re Q.(B.C.) [1993] CRDD No. 207 (QL); Re J.(F.H.) [1994] CRDD No. 77 (QL).
137
Guidance Note, above n. 26, para. 38. Millbank found that delay in sexuality claims ‘rarely was a major factor in
negative determinations’: Jenni Millbank, The Ring of Truth’: A Case Study of Credibility Assessment in Particular
Social Group Refugee Determinations (2009) 21:1 Int’l. J. Refugee L. 1 at 14.
138
Handbook, above n. 29, para. 98
 20

to accept the protection of the State of nationality, such unwillingness must be owing to a well-
founded fear of persecution: ‘whenever the protection of the country of nationality is available,
and there is no ground based on well-founded fear for refusing it, the person concerned is not in
need of international protection and is not a refugee.’139
One of the most significant omissions in the Guidance Note is the failure to deal with the
issue of state protection in a distinct and detailed section of the document. There are two
references to state protection, but they are very brief and located in discussions about other
substantive issues. This is a perplexing oversight as state protection has been an emerging and
recurring issue in sexual orientation and gender identity claims.140 Increasingly, the outcome of
many claims depends on whether the claimant has adduced clear and convincing evidence that
state authorities cannot or will not protect sexual minorities.
Several reasons explain the growing relevance of state protection in sexual orientation and
gender identity claims. Availability of state protection has been impacted the social, political and
legal progress in several countries. Legal reforms include the implementation of specific
measures to protect the human rights of sexual minorities, including remedies such as
mechanisms for individual complaints to an ombudsman, human rights commissions, and
measures to counter homophobia within police and state security forces. Decision makers have
therefore begun to examine the extent to which a gay man, lesbian, bisexual or transgender
person can seek protection in his or her country of origin rather than obtain refugee protection
elsewhere.
Another reason the question of state protection is increasingly relevant in sexual
orientation and gender identity claims is the fact that a significant number of claims identify
private violence as the source of the feared persecution. Violence against sexual minorities is
often committed by individuals who are not agents of the state, a fact acknowledge in the
Guidance Note.141 For instance, Shannon Minter states that lesbians, as is the case with other
women, are often victims of violence at the hands of family members. They are forced to marry;
subjected to psychiatric treatment against their will; deprived of their children; and are victims of
discrimination in respect of housing, employment, education, and health services.142 Gay male
claimants also testify about abuse received at the hands of family members,143 and the family and
social pressures that require them to conform to strict gender-based social roles. Some of the gay
claimants had been forced into marriages of convenience,144 whilst others claimed to have been
139
Ibid. para. 100
140
LaViolette, above n. 81 at 454-459.
141
Guidance Note, above n. 26, para. 27.
142
Shannon Minter, ‘Lesbians and Asylum: Overcoming Barriers to Access’, in Sydney Levy, ed., Asylum Based on
Sexual Orientation; A Resource Guide, San Francisco, IGLHRC, 1996, p. I.B./3 at pp.I.B./5-6; see also Re D.A.K.
[2000] C.R.D.D. No. 338 para. 23 (QL) (where the RPD noted that discrimination against lesbians in Mexico
happened ‘usually only within the realm of private life’).
143
Re U.J.Y. [2003] R.P.D.D. No. 23 (QL); Perez v. Canada (Minister of Citizenship and Immigration) [2004]
R.P.D.D. No. 78 (QL). The situation of a Nigerian claimant shows the extent to which family members may become
the agents of persecution: ‘The claimant’s father and his three brothers confronted the claimant whilst he was at
university, broke the information that they had about his homosexuality, horsewhipped him, and mistreated him,
whereupon the father involved the village elders in a ritual and gave his son, the claimant, an ultimatum: either get
married or be gotten rid of by the father’: Re A.M.A. [2000] C.R.D.D. No. 103 para. 4 (QL).
144
Re F.I.N. [1995] C.R.D.D. No. 151 (QL); Re L.U.M. [1996] C.R.D.D. No. 193 (QL); Re O.P.K. [1996] C.R.D.D.
No. 88 (QL); Re G.U.S. [1996] C.R.D.D. No. 66 (QL); Re U.V.G. [1997] C.R.D.D. No. 250 (QL). It is ironic that, in
certain cases, a marriage or relationship of convenience is the only possible way to escape persecution: L.M.D.,
[1992] C.R.D.D. No. 328 (QL); P.E.U., [1992] C.R.D.D. No. 397 (QL); Burgos-Rojas v. Canada (M.C.I.), [1999]
F.C.J. No. 85 (T.D.) (QL); O.R.R.(Re), [2000] C.R.D.D. No. 122 (QL); C.R.N.(Re), [2001] C.R.D.D No. 526 (QL).
 21

pressured to have children.145 In such cases, where the agents of persecution are private
individuals, the availability of state protection becomes a key issue to be determined as it is
presumed that a claimant could turn to the state for protection from family members or other
private persecutors.
Absent a complete breakdown of the state apparatuses or an admission by the state
authorities that they are unable to protect the claimant, a claimant must advance clear and
convincing evidence of the state’s inability to protect him or her. In Canada, courts have held that
‘where a state is in effective control of its territory, has military, police and civil authority in
place, and makes serious efforts to protect its citizens, the mere fact that it is not always
successful at doing so will not be enough to justify a claim that the victims of terrorism are
unable to avail themselves of such protection’.146 Moreover, the Federal Court of Appeal of
Canada has held that the burden of proof is proportional to the degree of democracy within the
state in question.147 The more democratic the state, the more available domestic remedies the
claimant must exhaust before claiming refugee protection.
Rebutting the presumption of state protection is made more difficult for sexual minorities
for a number of reasons. First, the existence of laws criminalizing homosexual activity can
directly impact the availability of state protection. Penal prohibitions, whether enforced or not,
can ‘reinforce persecutory environments and destroy opportunities for [sexual minorities] to seek
protection from state authorities’. In one of two references to state protection in the Guidance
Note, the UNHCR does underline how the existence of criminal sanctions for homosexuality may
hinder access to State protection: ‘For example, a LGBT person who has been exposed to
violence may hesitate to approach the police for protection because he or she may be regarded as
an offender instead of a victim’.148
A second, related issue is the fact that sexual minorities have to declare their sexual
orientation and gender identity in order to access state protection. The question becomes whether
this is realistic or reasonable.149 Human Rights Watch published a report on homophobic violence
in Jamaica in 2004 and their findings on police authorities are summarised as follows:
Victims of violence are often too scared to appeal to the police for protection. In
some cases the police themselves harass and attack men they perceived to be
homosexual. Police also actively support homophobic violence, fail to investigate
complaints of abuse, and arrest and detain them based on their alleged homosexual
conduct. In some cases, homophobic police violence is a catalyst for violence and
serious—sometimes lethal—abuse by others.150
The report detailed numerous violent and abusive incidents supporting the conclusion that it
would be unreasonable for Jamaican gay men and lesbians to seek state protection.

145
Re L.U.M., ibid.: ‘Being unmarried and without children would always subject me to ridicule and detection as a
homosexual, and therefore always at risk’); see also See also C.Y.T.(Re), [1998] C.R.D.D. No. 186 (QL); U.F.S.(Re),
[1999] C.R.D.D. No. 81 (QL); K.V.T.(Re), [1999] C.R.D.D. No. 64 (QL).
146
Canada (Minister of Employment and Immigration) v. Villafranca (1992) 18 Imm. L.R. (2d) 130 (F.C.A.);
Sampayo v. Canada (Minister of Citizenship and Immigration) [2004] R.P.D.D. No. 324 (QL).
147
K.N. v. Canada (Minister of Citizenship and Immigration) [1996] F.C.J. No. 1376 para. 5 (QL).
148
Guidance Note, above n. 26, para. 22.
149
Garcia v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J. No. 1008 (QL); Re U.O.D. [1999]
C.R.D.D. No. 106.
150
Human Rights Watch, Hated to Death: Homophobia, Violence, and Jamaica’s HIV/AIDS Epidemic (New York:
Human Rights Watch, 2004), available at http://hrw.org/reports/2004/jamaica1104 (accessed 6 April 2010), at 2.
 22

Third, as previously mentioned, independent country information remains hard to find for
many parts of the world and current information is often general and descriptive in relation to
state protection rather than specific and evaluative. For example, the 2008 ILGA report State-
Sponsored Homophobia does not include an analysis of the scope, impact and enforcement of
laws that criminalize same-sex conduct and their impact on the availability of state protection.151
It is difficult to rebut the presumption of state protection when human rights documentation is
unavailable or provides little information on attitudes and actual practice. Whilst some cases
benefit from extensive and wide-ranging human rights documentation,152 others rely on a
relatively small range of sources.
The Guidance Note fails to comprehensively canvass issues related to state protection.
The two references to state protection are in sections discussing the related issues of laws
criminalizing homosexual conduct and internal flight alternatives, rather than in a separate
analysis of state protection. They also amount to a handful of briefs sentences. In one reference,
the UNHCR recognizes ‘that criminal sanctions for homosexual activity also impede the access
of LGBT persons to State protection,’153 and that such a situation could support a claim that the
State condones or tolerates persecution of sexual minorities, or that the State is unable to offer
any state protection. In the second mention, the Guidance Note suggests that sexual minorities
‘must be able to access State protection in a genuine and meaningful way. The existence of
LGBT related Non Governmental Organizations does not in itself provide protection from
persecution’. Given the emerging importance of state protection in sexual orientation and gender
identity cases, such perfunctory references to the issue will certainly fail to provide much
guidance to refugee decision makers.

3.6 Internal flight alternative

The concept of ‘internal relocation alternative’, or ‘internal flight alternative’ (IFA) has become
integral to the determination of whether a claimant is a Convention refugee. In assessing whether
a refugee’s fear of persecution is well-founded, decision makers determine whether the claimants
can avail themselves of a safe place in the country of origin. The IFA rule essentially involves an
analysis of the general situation in the country to determine the risks faced by the claimant in a
proposed site of relocation. It also involves a consideration of the individual’s personal
circumstances to assess the claimant’s ability to effectively access and integrate into that location.
Both of these conditions must be satisfied for a finding that the claimant has an IFA. Refugee
protection will be denied if a claimant did not exhaust all possibilities of reaching safety in an
area within the claimant’s own country before seeking international protection.
IFAs are increasingly being assessed in claims based on sexual orientation and gender
identity. Social, political, and legal progress is sometimes highly localized in a state; more
tolerant destinations may therefore constitute an IFA for gay men, lesbians, bisexuals, or
transgender persons. In addition, meaningful protection in a different area of the country may
indeed be available to a claimant when he or she is being persecuted by non-governmental
entities acting independently of any governmental control or support. As mentioned above,
private persecution is regularly raised in cases brought forth by members of sexual minorities.

151
Ottosson, above n. 2.
152
For an extensive review of documentary evidence on state protection, see Re S.C.E. [2004] R.P.D.D. No. 8 (QL).
153
Guidance Note, above n. 26, para. 22.
 23

The Guidance Note recognizes the relevance of this issue in relation to sexual minority
claims and briefly deals with IFAs by suggesting that ‘it can often be assumed that if the State is
not willing or able to protect in one part of the country, it will not be willing or able to do so in
any other part’.154 The UNHCR urges decision makers to probe the actual reality of state
protection in another location before concluding that an IFA is available in refugee claims based
on sexual orientation and gender identity. The UNHCR also counsels that the presence of non-
governmental organizations dedicated to gay, lesbian, bisexual and transgender rights and issues
cannot of itself constitute sufficient protection from persecution in an IFA.155
The issues related to IFAs warrant more than the cursory examination provided in the
Guidance Note. Many of the problems identified previously in the discussion on state protection
apply to the viability of an IFA for sexual minorities. For instance, the concern that independent
country information does not probe the actual reality of protection is a constant concern in
refugee claims based on sexual orientation and gender identity.156
The problem with independent country information is in large part due to the fact that an
IFA is a highly specific refugee law concept. International and national human rights
organizations generally engage in fact-finding in attempts to influence public opinion and
international organizations and to shame and stigmatise abusive governments. They are not
primarily concerned with gathering information to meet the specific legal needs of asylum
seekers and refugee claimants. Therefore, human rights reports rarely compare internal locations
to determine whether one part of a country is a safer place for minorities or targeted individuals.
In their recent report on Turkey, Human Rights Watch provided a comprehensive picture of the
discrimination and repression facing sexual minorities.157 However, the report did not compare
the status of gay men, lesbians, bisexuals, and transgender persons relative to their geographic
location within the country. It is therefore unclear how useful the information in the report will be
to a refugee claimant trying to counter claims that large cities like Ankara or Istanbul may
constitute IFAs. It is regrettable that the Guidance Note fails to expand further on such issues.

3.7 Safe third countries

The Guidance Note further overlooks the emergence of the ‘country of first arrival’
principle and its potentially negative impact on sexual minorities. Increasingly, States are
deflecting claimants to safe third countries, arguing that claimants should avail themselves of the
protection of the first state through which they travelled when fleeing persecution. Jessica Young
has identified two ways in which the safe third country can impact sexual minorities. Young first
claims that ‘an individual’s failure to seek refugee status in a safe third country can have a
negative impact upon [a decision maker’s] assessment of his or her subjective fear of

154
Guidance Note, above n. 26, para. 34.
155
Ibid.
156
In Orozco Gonzalez v. Canada, Mexico City was considered a viable IFA on the basis of documentary
information that indicated that the capital city had its own annual gay parade; the city government had adopted anti-
discrimination legislation; and the police forces had created a preventive policing unit in order to address the issue of
homophobia. Yet nothing in the independent country information addressed the actual implementation of the
measures adopted by authorities in Mexico City; in fact, it appears that such an assessment was not available. The
claimant, who had the burden of proof, could offer no objective evidence to rebut the suggestion that Mexico City
was a viable IFA: Orozco Gonzalez v. Canada [2004] R.P.D.D. No. 120, para. 16-17.
157
Human Rights Watch, We Need a Law for Liberation’: Gender, Sexuality, and Human Rights in a Changing
Turkey (New York: Human Rights Watch, 2008).
 24

persecution’.158 In other words, a decision maker may find a claimant’s testimony in relation to
their subjective fear of persecution less credible if they failed to seek asylum at the first
opportunity. Jenni Millbank suggests UK decision makers are ‘demonstrably less sensitive than
those elsewhere to the prospect that a refugee claimant on the basis of sexual orientation may not
be able, or may not feel able, to make their claim in another country en route’.159 LGBT face
particular challenges that need to be considered in relation to this question. As Young argues, ‘a
number of factors relating to the experience of sexual minority claimants, such as a general lack
of awareness of their ability to claim refugee status or being “closeted”, may influence whether
they seek asylum prior to their arrival’ in the country when they eventually make a refugee
claim.160
A second concern relates to specific agreements negotiated between States pursuant to
which a State may return a refugee claimant to the first country from whom they could have
sought refugee status. Young examines the recent U.S-Canada Safe Third Country Agreement
which provides that ‘an individual seeking refugee status in Canada who has travelled through
the U.S. prior to arriving at the Canada-U.S. land-border may be returned to the U.S. for the
determination of his or her refugee claim, and vice versa’.161 In her view, such bilateral
agreements could be detrimental to sexual minorities. In relation to the STCA, Young points out
the differences between the U.S. and Canadian refugee determination systems which may
seriously disadvantage LGBT. For instance, the U.S. mandatory one-year time bar to refugee
claims can be particularly difficult to meet since some LGBT claimants are unaware that refugee
protection extends to them or if they are still struggling with their sexual orientation and gender
identity.162 In a recent challenge to the STCA, the Federal Court of Canada agreed that women
and sexual minorities ‘are more likely to delay their claims because of a lack of information and
because of the shame these types of claimants often feel’.163 Second the agreement overlooks the
differential family reunification treatments under U.S. and Canadian refugee law. The U.S. does
not recognize same-sex couples and therefore refuses to allow joint refugee claims or
immigration sponsorship applications.164 In addition to directing States to consider these specific
hurdles faced by LGBT when negotiating safe third country agreements, the Guidance Note
should also point out that it would be unadvisable to extend the application of such agreements to
sexual minorities if one State does not provide refugee protection to LGBT.165
158
Jessica Young, The Alternate Refuge Concept: A Source of Systematic Disadvantage to Sexual Minority Refugee
Claimants (2010) University of New Brunswick Law Journal (forthcoming).
159
See Jenni Millbank, above n. 137 at 15.
160
Young, above n. 158.
161
Ibid.
162
See Barry O’Leary, above n. 120 at 93-94. See also Jessie Mangaliman, ‘Gay Filipino Professor Wins Political
Asylum After Revealing a 30-year Secret of Sexual Abuse’ The Mercury News, 6 August 2008, where a refugee
claimant reveals that he had never revealed either his sexual orientation or sexual abuse when he was a child to his
family.
163
Canadian Council for Refugees v. Canada 2007 FC 1262, para. 162.
164
Young, above n. 158. Only Canada will include same-sex couples under the exemption under the STCA which
allows a claimant to enter if their spouse is in Canada, but that will also require a claimant to disclose their sexual
orientation at the border, something that they be unable or reluctant to do before gaining more information about the
treatment of LGBT in Canada.
165
For instance, Denmark does not consider ‘sexual orientation’ to fall within the ‘particular social group’ criteria
and ‘therefore those persecuted for this basis are not considered ‘refugees’: Olivier De Schutter, European Union

member States: Part ! Legal Analysis, 2008, available at 

Agency for Fundamental Rights, Homophobia and Discrimination on Grounds of Sexual Orientation in the EU

http://fra.europa.eu/fraWebsite/material/pub/comparativestudy/FRA_hdgso_part1_en.pdf  (accessed 6 April 2010)

 25

3.8 Sur place claims

Some claimants may not have identified as gay or lesbian before their arrival in the country of
refuge, or consciously decided not to act on their sexual orientation or gender identity in their
country of origin. The fear of persecution may arise whilst they are in the country of refuge, if
they have now come out or come to terms with their sexuality. Such a situation would make a
claimant a refugee sur place. Decision makers must keep in mind than gay men and lesbians who
are refugees sur place will not have personally experienced persecution, and their knowledge of
gay and lesbian activities in their country of origin may be limited. The UNHCR urges decision
makers to carefully consider all the circumstances of sur place claims in assessing whether a
sexual minority claimant has a well-founded fear of persecution on return.166
Whilst the Guidance Note appropriately point out the relevance of sur place claims, there
are seriously problems with the presentation of the issue. First, the Guidance Note suggests that
in some cases ‘public exposure of an applicant’s LGBT status is the result of “self-serving”
activities’. It further suggests that despite such ‘self-serving activities,’ a claimant may
nonetheless have a well-founded fear of persecution or may otherwise be in need of international
protection. The UNHCR concludes by stating that ‘a careful assessment of all the
circumstances, including the extent to which the activities were self-serving…is necessary’. It is
disconcerting that the UNHCR, after explaining at length in other sections of the Guidance Note
that ‘a person cannot be expected or required by the State to change or conceal his or her identity
in order to avoid persecution’, would imply that there are situations where a person’s ‘coming
out’ in the country of asylum is ‘self-serving’ rather than a legitimate assertion of a basic and
fundamental human right. It is even more problematic that the UNHCR suggests that the extent to
which public exposure of a claimant’s LGBT status is self-serving should be assessed; the
questions up for ‘assessment’ should be the standard inquiries into a claimant’s membership in
the particular social group, the claimant’s well-founded fear of persecution, the availability of
state protection and the credibility of their testimony.

3.9 Objective documentation

The Guidance Note says very little about problems sexual minorities may have in accessing
objective documentation to support their claims and no section is devoted to this issue. There is
one reference that states the following: ‘where... there is a lack of sufficiently specific country of
origin information the decision maker will have to rely on that person’s testimony alone’.167 This
is a cursory treatment of a question that continues to be a serious hurdle for gay, lesbian, bisexual
and transgender refugee claimants.
In order to meet the requirements of the 1951 Convention definition of refugee, a claimant
must present supporting evidence which normally consists of testimony of the claimant and
general evidence of a country’s human rights record. Whilst a claimant’s testimony may
constitute the whole of the evidence if it is ‘plausible, credible and frank’,168 independent country

at 97.
166
Guidance Note, above n. 26, para. 39-40.
167
Ibid., para 35.
168
James Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991).
 26

information will often be used to support a claim. Such evidence is typically drawn from
governmental, non-governmental, and media reports.
When claims based on sexual orientation and gender identity were first presented in the
early 1990s, sexual minorities encountered a specific set of problems in the area of fact-
finding.169 First, in many countries, very little information was available on human rights
violations against sexual minorities. Governmental and non-governmental organizations were not
documenting human rights violations against sexual minorities and thus were not able to provide
the independent country information necessary to prove the objective components of the
definition of refugee. Second, when available information originated from gay, lesbian, bisexual,
and transgender organizations, their evidence was sometimes dismissed as biased and unreliable.
The situation has improved as mainstream human right organizations expanded their
mandates to include the investigation of discrimination and persecution against sexual minorities.
In addition, documentation from sexual minority rights organizations is increasingly regarded as
a credible source of information. Nevertheless, whilst the developments described above allowed
many gay and lesbian refugee claimants to provide some supporting evidence of their well-
founded fear of persecution by the late 1990s, documentary challenges remain to this day.170
First, availability of documentation remains a problem. The extent to which mainstream
international human rights organizations and sexual minority rights groups are able to uncover
worldwide abuses against sexual minorities is still limited. In most countries, stigma continues to
attach to issues surrounding sexual orientation and gender identity. This often means that
homophobic violence is frequently unreported, undocumented, and ultimately unpunished,
making it difficult to investigate the problem. Louise Arbour, then UN High Commissioner for
Human Rights, declared in 2006 that
[b]ecause of the stigma attached to issues surrounding sexual orientation and gender
identity, violence against LGBT persons is frequently unreported, undocumented, and
goes ultimately unpunished. Rarely does it provoke public debate and outrage. This
shameful silence is the ultimate rejection of the fundamental principle of universality of
rights.171
Increased activism has also been met with attacks on gay, lesbian, bisexual, and transgender
human rights defenders, which seriously impede their ability to document violations. The
particular risks faced by human rights defenders working on issues of sexual orientation have
been recognized by the Special Representative of the UN Secretary-General on human rights
defenders in 2001:
Greater risks are faced by defenders of the rights of certain groups as their work
challenges social structures, traditional practices and interpretation of religious
precepts that may have been used over long periods of time to condone and justify

169
Nicole LaViolette, ‘Proving a Well-Founded Fear: The Evidentiary Burden in Refugee Claims Based on Sexual
Orientation’ in Sydney Levy, above n. 142.
170
See LaViolette, above n. 81; Arwen Swink, ‘Queer Refuge: A Review of the Role of Country Condition Analysis
in Asylum Adjudication for Members of Sexual Minorities’ (2005-2006) 29 Hastings Int’l & Comp. L. Rev. 251;
Barry O’Leary, above n. 120 at 91-92; Anisa de Jong, An Analysis of the Coverage of LGBT Issues in Country of
Origin Information Reports Produced by the COI Service, UK Border Agency (September 2008).
171
Louise Arbour, ‘Presentation of the Office of the United Nations High Commissioner for Human Rights’, Louise
Arbour to the International Conference on LGBT (Lesbian, Gays, Bisexual and Transgender) Human Rights’,

http://www.unhchr.ch/huricane/huricane.nsf/view01/B91AE52651D33F0DC12571BE002F172C?opendocument
Montreal, 26 July 2006), available at

(accessed 6 April 2010).

 27

violation of the human rights of members of such groups. Of special importance

will be women’s human rights groups and those who are active on issues of
sexuality especially sexual orientation and reproductive rights. These groups are
often very vulnerable to prejudice, to marginalization and to public repudiation,
not only by State forces but other social actors.172
The UN High Commissioner for Human Rights recognized the problem as well:
I recognize that many LGBT human rights organizations work in extremely
difficult circumstances. They are denied freedom of association when the
authorities shut them down, or otherwise prevent them from carrying out their
work. They are physically attacked when they organize demonstrations to claim
their rights. Many have even been killed for daring to speak about sexual
orientation. They are denied access to important fora, including at the international
level, where they should be able to have their voices heard.173
Increasing the risks are the fact that, according to the 2008 State-Sponsored Homophobia report,
being a gay man or a lesbian risks jail time in 86 countries and the death penalty in seven.174
Serious risks are therefore involved in investigating, documenting, and reporting human rights
violations against sexual minorities, especially if researchers are themselves gay, lesbian,
bisexual, or transgender.
Resource limitations also hinder the ability of human rights groups to investigate and
publish reliable, current and comprehensive information. Human rights organizations are not able
to produce information about all countries. Moreover, only a fraction of situations, often the most
egregious, make it into their documentation. Detailed country reports devoted exclusively to
human rights violations against sexual minorities are infrequently released. Moreover, the reports
that are produced may not investigate countries from which significant numbers of gay men,
lesbians, bisexuals, and transgender persons are fleeing. The Canadian Immigration and Refugee
Board has dealt with a considerable number of Mexican gay, lesbian, bisexual, and transgender
claimants,175 yet human rights organizations like Amnesty International and Human Rights
Watch do not have a current report on the human rights conditions for sexual minorities in
Mexico. Even NGOs exclusively dedicated to documenting human rights violations against
sexual minorities have limited abilities to investigate and publish information. Clearly, significant
barriers continue to prevent the documentation of human rights violations against sexual
minorities. This in turn translates into a scarcity of information that can be used to support
refugee claims.
In addition to the scarcity of objective country documentation, the legal issues considered
determinative of a refugee claim have shifted towards more complex issues of fact and law. The
inquiry into a claim based on sexual orientation or gender identity has become increasingly

172
United Nations Economic and Social Council, Commission on Human Rights, Report of the Special
Representative of the Secretary-General on Human Rights Defenders, UN ECOSOC, 57th Sess., E/CN.4/2001/94

http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/d6c1b351bf405ad3c1256a25005109bc/$FILE/G0110638.pdf
(2001), at p.24, available at

(accessed 6 April 2010).

173
Arbour, above n. 171.
174
Ottosson, above n. 2.
175
Mexico was until 2009 the largest source of refugee claimants generally in Canada: see Samantha Sarra, ‘New
Hearing for Rejected Mexican’, Xtra!, 16 April 2008, available at
http://www.xtra.ca/public/viewstory.aspx?AFF_TYPE=3&STORY_ID=4648&PUB_TEMPLATE_ID=9
(accessed 6 April 2010).
 28

layered. Rather than simply assessing the existence of serious human rights violations against
sexual minorities, decision makers are now interested in determining whether claimants fear
discrimination rather than persecution, whether they can access state protection, and the extent to
which another internal location can serve as alternative refuge. All three of these issues are linked
to objective conditions in the country of origin and therefore require documentation in order to
properly evaluate their relevance to a claimant’s case. The absence of independent country
information that is sufficiently focused or detailed to meet these new issues often translates into
poor assessments in the refugee hearing room.
Given the relative absence of reliable independent country information, the UNHCR
should use the Guidance Note to caution decision makers about using inappropriate sources as
substitutes. In 2002, Michael Battista, a refugee lawyer in Toronto sent a letter to the Canadian
Immigration and Refugee Board to complain about material produced for a hearing of a claimant
he was representing.176 According to Battista, the package contained material promoting
Mexico’s gay tourist and travel industry. This included downloaded information from websites
promoting Mexico’s gay tourist destinations. Battista claimed that such material was inherently
promotional and depicted social conditions in the most palatable light. In addition, the
information was unreliable as sources or authors were not identified. Finally, Battista argued that
the material was highly prejudicial, as it relied on stereotypical notions of gay men as primarily
interested in socialising, parties, and sexual activity.177 Dauvergne and Millbank have similarly
criticised the Australian Refugee Review Tribunal for relying on the Spartacus Guide, a travel
guide aimed at gay men, at refugee hearings.178
Unfortunately, the Guidance Note fails to address the documentation challenges facing
sexual minority claimants. This is a serious omission and one that needs to be rectified it future
iterations of the Guidance Note.

4. Conclusion

The 1951 Convention had provided actual and tangible protection to many individual LGBT
since the early 1990s, more so than any other international human rights instrument.
Nevertheless, sexual minorities have encountered a specific set of problems in having the refugee
definition applied to their claims. The preceding discussion has attempted to assess the extent to
which the release of the UNHCR Guidance Note on Refugee Claims Relating to Sexual
Orientation and Gender Identity might improve the ways national courts, administrative
agencies, refugee lawyers and state officials apply the 1951 Convention definition to sexual
minorities.
The UNHCR’s decision to provide an analysis of refugee claims based on sexual
orientation and gender identity is certainly welcome. Given the UNHCR’s mandate to monitor
the application of the 1951 Convention, the publication of the Guidance Note on Refugee Claims
Relating to Sexual Orientation and Gender Identity is entirely appropriate and in fact long
overdue. It is noteworthy that the UNHCR clearly acknowledges that sexuality is fundamental

176
Michael Battista, letter to Jean-Guy Fleury, Chairperson, IRB, 4 December 2002 (on file with author); see also
Joel Dupuis, ‘Believe the Hype: Refuge Evaluated according to Tourist Info’, Xtra!, 9 January 2003, available at
http://archives.xtra.ca/Story.aspx?s=14751297 (accessed 6 April 2010).
177
Battista, ibid.
178
Catherine Dauvergne and Jenni Millbank, ‘Burdened by Proof: How the Australian Refugee Review Tribunal Has
Failed Lesbian and Gay Asylum Seekers’, (2003) 31 Federal Law Review 299-342 at 317-20.
 29

part of human dignity, and that sexual minorities are entitled human rights protection, including
asylum and refugee protection. It is encouraging to see the UNHCR take an unequivocal stand
and to provide guidance on how refugee law should be interpreted to extend to sexual minorities.
It is hoped however that the UNHCR will consider the Guidance Note as a work in
progress. As outlined in this commentary, several significant and relevant issues are overlooked
and the Guidance Note fails to fully explore several other issues. For instance, state protection is
dealt with in a cursory manner even though it is becoming a determinative issue in many sexual
minority claims. Persistent challenges in relation to convention grounds are overlooked.
Bisexuality and intersexuality are inadequately analysed; questions about the availability of
objective documentation and the distinction between discrimination and persecution are not fully
canvassed; and the importance of a gender analysis is primarily mentioned in relation to lesbian
claimants despite its relevance in gay, bisexual and transgender cases.
The analytical weaknesses and oversights of the Guidance Note may be explained in part
by the limited consultations conducted during the drafting of the Guidance Note. A more
thorough consultative process could have flagged many issues and allowed the UNHCR to give a
more complete portrait of the challenges that arise in relation to sexual orientation and gender
identity and refugee law.
Whilst the Guidance Note should not be viewed as a full and complete analysis of refugee
claims based on sexual orientation and gender identity, it does provide a first and necessary
interpretive road map for decision makers responsible for determining such claims. At the very
least, the document will provide a basis for further commentary on the many issues facing gay,
lesbian, bisexual and transgender refugees.