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Thursday Thinkpiece: LaViolette on Sex, Gender and Refugee Determination

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Sexual Orientation, Gender Identity and the Refugee Determination Process
Nicole LaViolette
Paper prepared for the Immigration and Refugee Board of Canada in support of a presentation made to the Board members. March 2, 2010

[Footnotes omitted. They are available in the PDF of the full paper available via the link on the title.]

4. State protection

State protection has been an emerging and recurring issue in sexual orientation and gender identity claims. 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.

International refugee law was designed to reinforce protection individuals may receive from their own countries. 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 addition, courts have held to avail themselves of such protection’. In Canada, the Federal Court of Appeal has held that the burden of proof is proportional to the degree of democracy within the state in question. The more democratic the state, the more available domestic remedies the claimant must exhaust before claiming refugee protection.

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 UNHCR Guidance Note. 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. Gay male claimants also testify about abuse received at the hands of family members, 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, while 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 others claimed to have been pressured to have children. 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.

Refugee claimants must rebut the presumption of state protection by showing clear and convincing evidence that the state authorities in their countries of origin are unable or unwilling to protect them. This burden 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 mintorities] to seek protection from state authorities”. In one of two references to state protection in the UNHCR Guidance Note, the UNHCR underlines 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.

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. 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.

The report details numerous violent and abusive incidents supporting the conclusion that it would be unreasonable for Jamaican gay men and lesbians to seek state protection.

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. 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. While some cases benefit from extensive and wide-ranging human rights documentation, others rely on a relatively small range of sources.

The UNHCR Guidance Note suggests that sexual minorities “must be able to access State protection in a genuine and meaningful way. The UNHCR Guidance Note also recognizes “that criminal sanctions for homosexual activity also impede the access of LGBT persons to State protection,” 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 Melo v. Canada (Minister of Citizenship and Immigration), the Federal Court noted that the RPD, in assessing the availability of state protection, only focussed on the positive legislative changes that had been made in Brazil. The Court held that this was an error as the “real life situation” of the claimants had to be examined. It further stated that decision-makers must address “whether the legislative changes have in fact resulted in any meaningful protection” for sexual minorities.

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