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Jason Dzubow on Political Asylum

Gay Rights and the UN: One Step Back, One Step Forward

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Sexual orientation is all about identity: Are you gay or straight or
bi or trans or questioning or something else? *It seems that the United
Nations has some identity issues of its own when it comes to LGBT
rights. * *

This past September, a "traditional values" resolution sponsored by Russia passed in the UN Human Rights Counsel,
25-15, with seven abstentions (the U.S. voted against). *The text of
the resolution and a list of countries and their votes can be found here.
*The resolution reaffirms that "everyone is entitled to the rights and
freedoms... without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social
origin, property, birth or other status." *The basic problem is that
this list purposefully omits the reference to sexual orientation. *Thus
(as usual), the term "traditional values" is code for "anti-gay." *


The UN has a split personality when it comes to gay rights.



While this particular resolution will probably have little effect, I
fear it is an unfortunate bellwether of member states' positions on LGBT
rights and protecting LGBT refugees. *As an aside, my first job as a
practicing lawyer was at Catholic Community Services in New Jersey. *I
remember being surprised that the Catholic Church-which generally
opposes gay rights-was assisting gay asylum seekers. *When you think
about it, this is not entirely inconsistent: While the Church opposes
gay rights, it also opposes persecution of gay people. *My concern with
the UN resolution is that it might be a harbinger of something more
sinister-the contraction of protection for people facing persecution on
account of their sexual orientation (in 2008, the UN recognized that sexual orientation was a basis for protection under the Refugee Convention). *

But as you might have guessed from the title of this piece, the news from the UN is not all bad.*

Late last month, UNHCR issued new guidelines concerning claims to refugee status based on sexual orientation and gender identity.* The guidelines state:

A proper analysis as to whether a LGBTI
applicant is a refugee under the 1951 Convention needs to start from the
premise that applicants are entitled to live in society as who they are
and need not hide that.* As affirmed by the position adopted in a
number of jurisdictions, sexual orientation and/or gender identity are
fundamental aspects of human identity that are either innate or
immutable, or that a person should not be required to give up or
conceal.

The guidelines recognize persecution by governments, society, and
family members, and also note that laws criminalizing homosexuality can
rise to the level of persecution.

The guidelines also make recommendations concerning refugee status
determinations for LGBT applicants.* Most of the recommendations seem
like common sense, but I think they are helpful and-given the sentiments
of many UN member states concerning LGBT people-worth repeating.* The
recommendations include:

- An open and reassuring environment is often crucial to establishing trust between the interviewer and applicant
-
Interviewers and decision makers need to maintain an objective approach
so that they do not reach conclusions based on stereotypical,
inaccurate or inappropriate perceptions of LGBTI individuals
- The
interviewer and the interpreter must avoid expressing, whether verbally
or through body language, any judgement about the applicant's sexual
orientation, gender identity, sexual behavior or relationship pattern
-
Specialized training on the particular aspects of LGBTI refugee claims
for decision makers, interviewers, interpreters, advocates and legal
representatives is crucial
- Specific requests made by applicants in relation to the gender of interviewers or interpreters should be considered favorably
-
Questioning about incidents of sexual violence needs to be conducted
with the same sensitivity as in the case of any other sexual assault
victims

The U.S. government is ahead of the game in this matter.* In January 2012, USCIS (with help from Immigration Equality) issued a training module to help Asylum Officers with LGBT cases.

So it seems that the UN is of two minds about LGBT rights.* There is
no doubt that many countries and societies violently oppress and murder
people just because of their sexual orientation.* For their sake, I hope
the progressive states continue to pressure the UN to move forward on
LGBT issues.

Originally posted on the Asylumist: www.Asylumist.com.

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Updated 07-16-2013 at 01:58 PM by JDzubow

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