ILGA_State_Sponsored_Homophobia_2012

Refugee Context Considered
By Jenni Millbank, Professor of Law, University of Technology Sydney
Eddie Bruce-Jones, Lecturer in Law, Birkbeck College School of Law, University of London
The ILGA Report on State-Sponsored Homophobia is a comprehensive outline of the legal
status of same-sex sexual activity. However, it is very important to keep in mind that the
question of legality of same-sex sexual activity does not determine the question whether
people may be at risk of being persecuted in their countries of origin for engaging in such
activity. Knowing that there is a difference between these two questions is vital for legal
practitioners, policy makers and adjudicators in the refugee context.
The 1951 Refugee Convention defines refugees in Article 1(A) as those who:
“owing to well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside the
country of his nationality and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country; or who, not having a nationality and being
outside the country of his former habitual residence as a result of such events, is
unable or, owing to such fear, is unwilling to return to it.”
Criminalisation of same-sex activity may be relevant to the determination of risk of
persecution in a number of ways. The imposition of criminal sanctions by the State in and of
itself may constitute persecution (UNHCR 2002; 2008). Criminal laws prohibiting gay sex,
whether or not regularly enforced, render sexual minorities vulnerable to extortion,
exploitation and other forms of abuse at the hand of both state and non-state actors. Such
criminal laws systematically contribute to a failure of State protection, by preventing victims
of homophobic violence from seeking and being provided assistance. Furthermore, criminal
laws of this kind, whether or not enforced, contribute to persecutory environments, by
stigmatising LGBTI people through official means. However the absence of, or repeal of,
criminal proscriptions absolutely must not be taken as establishing the reverse proposition.
Lack of explicit criminalisation of same-sex sexual activity does not prevent LGBTI people from
facing extreme violence. The absence of criminalisation does not demonstrate the absence
of risk of persecution and/or sufficiency of state protection. The question of legality of gay sex
is only one element, and cannot alone be taken as an answer to the question of risk of
persecution based on sexuality.
ILGA has been given feedback that earlier incarnations of this report have been used in
some refugee determination hearings as evidence that there is no real risk of persecution for
lesbian or gay applicants from countries where either the law had been amended to
decriminalise same-sex sexual activity or where there was no legal provision expressly
criminalising the activity. This introduction urges readers of this document, in particular legal
professionals, to think carefully and critically about its use in matters related to refugee and
asylum claims. Specifically we urge readers to seek the most detailed, accurate and up to
date country of origin information possible to place this information in context before use in
any refugee determination.
from the University of Gothenburg (Sweden), Roehampton University (UK) and University of Tromsø (Norway), as part
of the Erasmus Mundus programme. Lucas has dedicated most of his academic and professional work to LGBT issues.
He assisted Prof. Kees Waaldijk with his 2009 paper "Legal recognition of homosexual orientation in the countries of
the world" and worked for the LGBT General Coordination from the Human Rights Secretary of the Presidency of Brazil
from 2009 to 2010. He has been an intern at the International Centre for the Legal Protection of Human Rights
(Interights) in London in 2011 and at the Permanent Mission of Brazil to the United Nations in Geneva in 2012.
State-Sponsored Homophobia – May 2012
ILGA – The International Lesbian, Gay, Bisexual, Trans and Intersex Association - www.ilga.org
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