Adjudicating Protection: The Refugee Process for LGBTQI+ Individuals in South America

Abstract

Daily, dozens of individuals are subjected to stigma, threats, mistreatment, and social ostracism solely because of who they are, what they desire, and whom they love. Hate crimes targeting the LGBTQI+ community, the criminalization of sex between people of the same gender, and the pathologization of intersex bodies are just a few examples of the injustices faced by this group. These forms of discrimination not only persist but are also on the rise. The pressing question then arises: has the international community adequately addressed the need for protective measures for individuals undergoing persecution due to reasons they neither chose nor can change, such as members of the LGBTQI+ community?

This research aims to shed light on one of the key protective mechanisms: the refugee system. Our contemporary refugee system was established in the aftermath of World War II, primarily designed to address the humanitarian crises resulting from the war. The Refugee Convention of 1951 was the cornerstone of this system, created to repair the damages inflicted during the conflict. However, the Convention’s geographical and temporal limitations, intended to address post-war conditions, quickly became apparent as potential obstacles to its relevance. To address these concerns, the Protocol of 1967 was introduced to amend the Convention and extend its protections beyond the original constraints. Despite these advancements, neither the Convention nor the Protocol recognized gender identity or sexuality as grounds for asylum. The Convention’s definition of a refugee was restricted to persecution based on ethnicity, race, political opinion, culture, and membership in a particular social group.

In the 1990s, a notable shift began as some states adopted a more expansive interpretation of the Refugee Convention. These countries began granting asylum to individuals fleeing persecution due to their sexual orientation, gender identity and/or sexual expression. While this practice was relatively uncommon at the time, it gained momentum throughout the early 2000s and became more prevalent in various countries around the world. This shift exposed gaps in the international framework, leading the UNHCR to issue specific guidelines. In 2002, UNHCR’s Guidelines number two urged states to recognize gender as a basis for persecution and asylum. Guidelines number nine (2012) and number twelve (2016) further addressed sexuality, emphasizing the need for non-discrimination and protection of LGBTQI+ individuals. Additionally, the Yogyakarta Principles, drafted in 2007 by legal scholars, offered non-binding recommendations for interpreting international law with LGBTQI+ sensitivity, enhancing the protection framework for LGBTQI+ individuals.

Through the evolution of international practices and the development of subsidiary frameworks, the legal landscape has gradually adapted to offer better and more suitable protection for LGBTQI+ people fleeing persecution. However, a considerable gap exists between legal provisions and actual practices. Thus, advancements in written norms have not necessarily been exempt from malpractices and legal violations. An increasing number of scholars have paid attention to this, highlighting the various obstacles that LGBTQI+ asylum seekers face when requesting asylum.

The increase in academic scholarship, however, has not been uniform everywhere. Even though the Southern Hemisphere hosts 85% of the global refugee population and one in every three new asylum applications is filed in Latin America, our knowledge of how this population is treated when filing their asylum petitions in the Southern Hemisphere in general, and Latin America in particular, is minimal. Existing scholarship on LGBTQI+ asylum seekers has focused on single cities or, at best, individual countries, and has not provided comparative analyses or large-scale assessments of this particular population. This research aims to fill that gap by providing the first comparative study of the five most popular countries for asylum petitions in South America, with the objective of understanding how these countries apply the refugee framework to LGBTQI+ asylum seekers.

For this purpose, the study follows a qualitative approach through non-probabilistic expert surveys in Argentina, Brazil, Chile, Ecuador, and Peru, which together account for more than 87% of all asylum petitions requested in South America. Seventeen experts were surveyed on various elements of the refugee application process, such as questions during interviews, evidence requested, reasons for accepting or denying refugee status, the reliance on stereotypes when making decisions, existence of stereotypes, possible sources of discrimination, etcetera. The analysis reveals that despite international legal obligations, the reality for LGBTQI+ asylum seekers in the countries under study is often fraught with difficulties. Implementation failures are common, ranging from a lack of awareness and training among officials to systemic biases and prejudices, including the requirement of medical certificates to corroborate one’s gender identity. Likewise, this study reveals the coexistence of good and bad practices within the same country, underscoring the issue’s complexity and the need for a more nuanced understanding of state responses.

The study proposes a typology of states based on the degree of compliance with international norms. This typology classifies countries into five categories according to their level of compliance with the international framework, ranging from “Correct Compliance” to “No Compliance.” Argentina and Brazil, despite their challenges and room for improvement, fall into the “Correct Compliance” category due to their relatively advanced practices. In contrast, Ecuador, Chile, and Peru, with more pronounced implementation gaps, breaches of basic human rights and violations of international refugee law, are categorized under the “Severe Compliance Failure” category.

The findings of this study reveal that LGBTQI+ asylum seekers in South America are more likely to undergo a process marked by illegal practices. This has implications that go beyond the purely theoretical: as long as these failures persist, what multiplies are violations of the most basic rights of one of the most vulnerable populations, highlighting the urgent need for improved implementation of asylum laws to protect LGBTQI+ individuals.

Lastly, this study is structured as follows: First, it begins by providing a succinct recount of the international refugee law and its connection with issues of gender identity and sexuality. Then, it offers an overview of the existing literature, highlighting both main agreements and gaps in academic scholarship. It then explains the research design, the particularities of the expert survey and of the robustness measures. Lastly, it presents the findings of the survey and draws some conclusions.