Abstract
LGBTI (lesbian, gay, bisexual, transgender, and intersex) people are at risk for the same human rights abuses in humanitarian emergencies as the rest of the population. However, existing stigmas surrounding minority sexual orientation and gender identities, coupled with rigid normative systems within the context of emergency response, may further marginalize and compromise the security and well-being of LGBTI persons. This chapter offers examples of the experiences of LGBTI people in emergencies and the specific challenges faced in periods of unrest and in accessing the services designed to help people. It then addresses gathering data on LGBTI populations, explores key areas where LGBTI persons face barriers to humane emergency assistance, and examines proxies that may suggest approaches to improving protection mechanisms in emergency response and other postcrisis programming. Finally, it suggests recommendations for making emergency programs and protocols sensitive to the experiences and needs of LGBTI people.
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Notes
- 1.
As of 2013, 78 countries criminalize same-sex relations. Homosexual acts are punishable by death in Iran, Mauritania, Saudi Arabia, Sudan, Yemen, and some parts of Nigeria and Somalia. ILGA: http://old.ilga.org/Statehomophobia/ILGA_State_Sponsored_Homophobia_2013.pdf_Homophobia_2013.pdf. Note that countries with no criminal laws against homosexuality may still use debauchery, public morality, and sodomy laws disproportionately against LGBTI people, and a lack of criminalization does not mean LGBTI people do not face extreme violence—including rape, torture, and murder—from state and non-state actors. See United Nations General Assembly Human Rights Council (2011).
- 2.
For an example of the ongoing debate about what comprises gender-based violence (GBV), and how gender programming should be structured in relation to the definition of GBV, see Hamilton (2014).
- 3.
Yogyakarta Principles (2007).
- 4.
- 5.
Thoreson (2009).
- 6.
According to UNHCR, there are three durable solutions that allow refugees to rebuild their lives: voluntary repatriation, local integration, and resettlement to a third country. For more information on durable solutions, see UNHCR (2014b).
- 7.
“The meanings of [sex and gender] are widely contested in the hard and soft sciences, in the humanities, in legal theory, in women’s and gender studies, and increasingly in popular discourse. Ultimately, the only thing we know for sure about what sex means, or what gender means, is what state actors, backed by the force of law, say those words mean” (Currah and Mulqueen 2011).
- 8.
Ibid.
- 9.
Benigno (2012).
- 10.
International Gay and Lesbian Human Rights Commission (2011).
- 11.
Sollom and Knight (2012).
- 12.
UNHCR, “2013 country operations profile—Kenya,” http://www.unhcr.org/pages/49e483a16.html.
- 13.
Human Rights First (2012).
- 14.
Pincha (2007).
- 15.
Knight (2011).
- 16.
Knight and Sollom, supra, note 12.
- 17.
Ibid.
- 18.
Balgos et al. (2012).
- 19.
Some details on the context of the term “transgender” in this case in Pakistan: “Across South Asia, the term ‘hijra’ refers to people who are born male, but identify as more feminine, and traditionally undergo castration and live in communities with other hijras under a community leader. In a popular essay on the hijras of India, scholar Serena Nanda explains: ‘The cultural notions of hijras as ‘intersexed’ and ‘eunuchs’ emphasize that they are neither male nor female, man nor woman. At a more esoteric level, the hijras are also man plus woman, or erotic and sacred female men.’” (429 Magazine 2013).
- 20.
LGBT Asylum News (2011).
- 21.
Knight, supra, note 16.
- 22.
Human Rights First, supra, note 14.
- 23.
Hebrew Immigrant Aid Society (HIAS) for the Bureau of Population, Refugees, and Migration of the US Department of State, “Invisible in the City: Protection Gaps Facing Sexual Minority Refugees and Asylum Seekers in Urban Ecuador, Ghana, Israel, and Kenya,” February 2013: http://www.hias.org/uploaded/file/Invisible-in-the-City.pdf.
- 24.
Chaman Pincha, supra, note 15.
- 25.
Knight et al. (2012).
- 26.
Balgos, B., Gaillard, J. C., & Sanz, K., supra, note 19.
- 27.
In the USA, legal gender change requirements vary from state to state, but many require years of psychotherapy and certification by a psychiatrist, plus genital surgery and certification of such by a physician to even apply for one’s gender to be changed on official documents.
- 28.
D’Ooge (2008).
- 29.
Ibid.
- 30.
Eads (2002).
- 31.
UNHCR (2011).
- 32.
International Gay and Lesbian Human Rights Commission, supra, note 11.
- 33.
For more on the lack of engagement with sexuality issues by the international aid community, see: Sida (2010).
- 34.
HIAS, supra, note 25.
- 35.
- 36.
Gates (2012).
- 37.
Ibid.
- 38.
While there is much debate over the various factors that influence sexual orientation and gender identity, there is an understanding that shifts in how people self-identify happen as result of many factors—including cultural, linguistic, age-related, and geographic factors—and that a change in identity, behavior, or attraction should not trigger or result in any lesser scrutiny when it comes to upholding peoples’ human rights.
- 39.
UNHCR (2006).
- 40.
Gates suggests: “The evolution of racial and ethnic identity may be constructive in how we think about these issues. Fifty years ago, the Census categorized your race based upon the Census enumerator looking at your skin color. Today, individuals are free to define their racial and ethnic identities separate from how they look. We consider this to be an advance in how we think about race and ethnicity in our society. In the LGBT framework, we might ask, is it correct to impose an LGBT identity based on observation of particular behaviors rather than on personal affiliation?” Gary Gates, supra, note 37.
- 41.
Ibid.
- 42.
The Williams Institute (2013).
- 43.
Ibid.
- 44.
Knight (2012a).
- 45.
Baudh (2008).
- 46.
The Williams Institute, supra, note 43.
- 47.
Harrison et al. (2011–2012).
- 48.
An example of such a concern is populations made “invisible” by war, as in parts of Angola and eastern areas of the Democratic Republic of Congo (DRC), where population figures varied significantly: Recent estimates for the population of Ituri Province in eastern DRC vary between 1 and 4.5 m. This and a variety of additional constraints affect the reliability of other crucial demographic information. Estimates of the number of deaths attributable to the conflict in DRC, while generally reckoned in the millions, remain uncertain and contested—an uncertainty that surrounds mortality and other data for similarly inaccessible contexts. See: Humanitarian Policy Group (2013).
- 49.
Humanitarian Policy Group, supra, note 49.
- 50.
Fritsch and Myatt (2011).
- 51.
ReliefWeb (2013).
- 52.
Humanitarian Policy Group, supra, note 49.
- 53.
The Williams Institute, supra, note 36.
- 54.
Research in the USA has shown that using partnership questions to measure sexual orientation can be effective. Some surveys that have not asked direct questions about sexual orientation have changed their marital status questions and response options to include “living with partner” (and related categories) to capture the overall rise in nonmarital cohabitation in the USA. These surveys have produced valuable data orientation because researchers can use information on household sex composition to create samples of individuals in same-sex cohabiting relationships who are very likely to be gay and lesbian couples (Black et al. 2000).
Christopher (2004).
- 55.
The Advocate (2012).
- 56.
UNHCR (2012b).
- 57.
According to UNHCR, two-thirds of displaced individuals globally remain within their own countries. Approximately 28.8 million persons are displaced worldwide; at the beginning of 2012, 10.4 million were refugees: http://www.unhcr.org/pages/49c3646c11.html.
- 58.
On the subject of double marginalization of LGBTI refugees, Dale Buscher notes, “The term ‘double marginality’ has been coined to highlight how the effect of being both LGBT and a refugee is not simply the cumulative sum of belonging to both groups but rather that these marginalisations are compounded, yielding profound distancing from traditional support systems and resources” (Buscher 2011).
- 59.
Currah, P. and Mulqueen, T., supra, note 8.
- 60.
Ibid.
- 61.
Marybeth and Greenberg (2005).
- 62.
Human Rights Watch (2011).
- 63.
Convention on International Civil Aviation, art. 37, signed Dec. 7, 1944, 15 U.N.T.S. 295. Standards for machine-readable passports were published in Doc 9303. INT’L CIVIL AVIATION ORG., DOC 9303:MACHINE READABLE TRAVEL DOCUMENTS (6th ed. 2006), available at: http://www.icao.int/Security/mrtd/Downloads/Forms/AllItems.aspx?RootFolder=/Security/mrtd/Downloads/Doc%209303/Doc%209303%20English. In the Visual Inspection Zone of the passport, the “sex” field must be filled in as follows: “Sex of the holder, to be specified by use of the single initial commonly used in the State where the document is issued and, if translation into English, French or Spanish is necessary, followed by a dash and the capital letter F for female, M for male, or X for unspecified.” In the Machine Readable Zone of the passport, sex must be marked as “F = female; M = male; < = unspecified.” Here, X is replaced with a “ < ” filler symbol, which is used in other places (for example, in place of hyphens in names).
- 64.
Knight (2012b).
- 65.
For example, Australian citizens are required to list their gender on passports as M (male), F (female), or X (unspecified). While changing gender on documents requires a certifying letter from a doctor, sex reassignment surgery is not required to issue a passport in the preferred gender. The letter from the medical practitioner must confirm intersex status or “appropriate clinical treatment” for gender transition. If unable to obtain a letter from a doctor, citizens can apply for a document of identity with the gender marker field left blank, then complete the passport application.
In New Zealand, people have the option of changing the gender on their passports, also to M, F, or X. To get a name change, a family court must approve. However, to obtain the gender change (including to “X”), citizens must simply submit a statutory declaration indicating how long they have been living in their current gender identity. The declaration must also promise that should the person’s gender identity change in the future through a court process, a new application and full fees will apply in order to have the new gender identity recorded in the passport. Citizens are not required to change their name to apply for a change in gender (including the “X”) in their passport.
India has issued passports to people who identify as a third gender, denoted by an “E” for “eunuch,” since 2005 and a 2014 Supreme Court judgment recognized a third gender category fully. Nepal’s Supreme Court established a third-gender category in 2007, and ruled in 2013 that the government must issue passports according to the gender (male, female, or other) as listed on citizenship documents. Nepal’s policy for changing one’s gender on citizenship documents requires an affidavit, but no medical intervention or examination. National Legal Services Authority versus Union of India http://hostb.org/15D.
- 66.
Spade (2008).
- 67.
Ibid.
- 68.
OHCHR, “Pillay welcomes Australian decision on identity for transgender and intersex people,” September 16, 2011: http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11384&LangID=E.
- 69.
LGBTI people experience torture, violence, discrimination, and persecution in countries around the world, sometimes deliberately carried out by the state with impunity. See the United Nations General Assembly Human Rights Council, supra, note 2.
- 70.
IRIN (2013b).
- 71.
The durable solution of resettlement is considered when individuals are unable or unwilling to go home because they fear persecution, and are unable to remain in the country of asylum due to a lack of protection or special needs that cannot be met. Approximately 1 % or less of refugees are submitted by UNHCR to resettlement countries for resettlement consideration annually: UNHCR (2014a).
- 72.
United Nations Development Programme (UNDP) and the Asia-Pacific Transgender Network (2012).
- 73.
United Nations Office on Drugs and Crime (2009). See also: International Human Rights References to Human Rights Violations on the Grounds of Sexual Orientation and Gender Identity, International Commission of Jurists, Geneva, October 2006, p. 9.
- 74.
Association for the Prevention of Torture (2013).
- 75.
Mottet and Ohle (2003).
- 76.
Satterthwaite (2011).
- 77.
For more information about refugee camp planning, see the UNHCR Handbook for Emergencies, Third Edition, http://www.unhcr.org/472af2972.html.
- 78.
For example, see HIAS, supra, note 25.
- 79.
Human Rights First (2010).
- 80.
ORAM and Refugee Law Project (2013).
- 81.
See, among others, supra, ORAM and Refugee Law Project note 81, Human Rights First note 80, Buscher note 59, and HIAS note 24.
- 82.
Human Rights First, supra, note 80.
- 83.
Moses (2013).
- 84.
The Norwegian Refugee Council’s Camp Management Toolkit is available at: http://www.nrc.no/arch/_img/9295458.pdf; NRC reports they will include LGBTI subject material in the forthcoming edition. The Sphere Project Handbook is available at: http://www.sphereproject.org/handbook/.
- 85.
On the involvement of humanitarian organizations in protection, Satterthwaite also notes: “For many years, protection was viewed as the responsibility of so-called ‘mandated agencies.’ This has been attributed to the fact that protection has been seen as a uniquely governmental responsibility, with the mandated agencies having a specifically defined role alongside states under international law …. In recent decades, protection has come to be seen as an important responsibility for the humanitarian system as a whole, though it is often dealt with as a specialized area, separate from the ‘technical sectors’ such as food and water. Humanitarians’ proximity to armed conflict, their sense of responsibility following the failures in the Rwanda era, and the integration of human rights into the humanitarian endeavor all might be cited as factors contributing to this enlarged sense of responsibility for protection.” Satterthwaite, Margaret L., supra, note 77.
- 86.
ORAM and Refugee Law Project, supra, note 80.
- 87.
UNAIDS (2012).
- 88.
United Nations Human Rights Council (2010).
- 89.
Knight and Sollom, supra, note 12.
- 90.
Chaman Pincha, supra, note 15.
- 91.
Due to the dearth of research about intersex people involved in sex work, in this section we use “LGBT.”
- 92.
UNDP and the Asia-Pacific Transgender Network, supra, note 73.
- 93.
Sida, supra, note 34.
- 94.
Hawkes et al. (2011).
- 95.
UNAIDS, supra, note 88.
- 96.
- 97.
Godwin (2010).
- 98.
United Nations Development Programme (UNDP), supra, note 73.
- 99.
Stephenson et al. (2010).
- 100.
UNHCR (2012c).
- 101.
Stemple (2009).
- 102.
Ibid.
- 103.
Godwin (2012).
- 104.
International Conference on Gender Identity and Human Rights, “Conclusions,” June 2010: http://www.congenid.org/en/home/conference/conclusions.html.
- 105.
IRIN (2013c).
- 106.
Global Network of Sex Work Projects (2011).
- 107.
Knight and Sollom, supra, note 12.
- 108.
International Gay and Lesbian Human Rights Commission, supra, note 11.
- 109.
There is a limited amount of detailed research on LGBT people engaged in sex work in general. The studies from a public heath perspective, many focusing on transgender prostitutes and HIV, are complemented by a handful of ethnographic studies, of which Travesti (Kulick 1998), Mema’s House, Mexico City (Prieur 1998), and Beneath the Equator (Richard Parker 1999) are the best known.
- 110.
It is important to note that this term is contested for a number of reasons, but still widely used in HIV/AIDS work around the world. MSM may be but are not necessarily “gay” or “bisexual,” but rather engage in sexual relations with other men independent of any identity label. In addition, male-bodied transgender or gender-variant people are often captured in MSM-focused data sets as they legally and, some argue, technically qualify as men for public health purposes regardless of their identity. In recent years, a new term, GMT, or “gay men or other men who have sex with men” has emerged—arguably to settle some of these disagreements.
- 111.
AidsMap (2007).
- 112.
IRIN (2013a).
- 113.
Meyer and Northridge (2007).
- 114.
Inter-Agency Standing Committee (2007).
- 115.
American Foundation for AIDS Research (2013).
- 116.
IRIN (2010).
- 117.
UNHCR (2012a).
- 118.
World Health Organization (2006).
- 119.
American Foundation for AIDS Research, supra, note 116.
- 120.
HIV/AIDS Research and Palliative Care (2013).
- 121.
UNHCR (2010).
- 122.
The LGBTI training and safe space initiative is an endeavor of author Jennifer Rumbach. Started in Baghdad, Iraq, in 2011 in response to the ongoing violence against LGBTI Iraqis and an identified need for IOM staff sensitization and training as well as a safer office environment for LGBTI refugees, the project has now been expanded to IOM’s four RSCs (Eurasia, based in Moscow, Russia; Latin America, based in Quito, Ecuador; North Africa, and Middle East, based in Amman, Jordan; and South Asia, based in Damak, Nepal). Training has also been provided for other IOM offices and organizations. This initiative has been informed by the work of the US State Department, the Office of Refugee Resettlement, Heartland Alliance, Human Rights First, Human Rights Watch, OHCHR, UNHCR, ORAM, and many other entities.
- 123.
Since 2011, training has been held in Ecuador, Egypt, Hong Kong, India, Iraq, Jordan, Kenya, Lebanon, Nepal, Pakistan, Russia, Sri Lanka, Switzerland, Thailand, and the USA. Representatives from IOM, international agencies, national and international NGOs, and governments have participated in training.
- 124.
LaViolette (2013).
- 125.
In the asylum context, much has been written about officers asking individuals culturally specific or invasive questions to determine the credibility of their sexual orientation claims. Examples from the UK include officers asking if individuals have read Oscar Wilde, listen to Kylie Minogue, visit gay clubs, use sex toys, or can describe same-sex sex acts. See The Independent, “‘Gay? Prove it then—have you read any Oscar Wilde?’: Judges accused of asking lesbian asylum seekers inappropriate questions,” 04 April 2013: http://www.independent.co.uk/news/uk/home-news/gay-prove-it-then-have-you-read-any-oscar-wilde-judges-accused-of-asking-lesbian-asylum-seekers-inappropriate-questions-8558599.html and BBC, “Asylum seeker: ‘I had to prove I’m gay’,” 27 February 2013: http://www.bbc.co.uk/news/uk-21601803. This has caused some UK asylum seekers to take extreme measures, such as filming themselves having sex and presenting it as evidence. See: The Guardian (2013). UK policies, as well as those outlined by US Citizenship and Immigration Services (USCIS) and UNHCR, discourage the use of sexually explicit lines of questioning as a means to assess the credibility of claims. USCIS and UNHCR advise asking nonsexual questions about childhood, family relations, societal stigma, and same-sex partners. This guidance is in line with the “difference, stigma, shame, harm” (DSSH) model developed by S. Chelvan: http://www.no5.com/barristers/barrister-cvs/s-chelvan-immigration-asylum-and-nationality/. The DSSH model is advocated within the LGBTI training and safe space initiative. For more information on USCIS and UNHCR policies, see http://www.refworld.org/pdfid/50348afc2.pdf and http://www.uscis.gov/USCIS/Humanitarian/Refugees%20&%20Asylum/Asylum/Asylum%20Native%20Documents%20and%20Static%20Files/RAIO-Training-March-2012.pdf.
- 126.
Human Rights Campaign, “Working with the Lesbian, Gay, Bisexual and Transgender Community: A Cultural Competence Guide for Emergency Responders and Volunteers,” http://www.hrc.org/files/assets/resources/EmergencyResponders_-_LGBT_Competency.pdf.
- 127.
Note it is important not only to translate LGBTI terminology from English to the relevant language but also to ask what terminology in the relevant language does not have a direct translation into English, and agree in advance on how this concept will be explained.
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Rumbach, J., Knight, K. (2014). Sexual and Gender Minorities in Humanitarian Emergencies. In: Roeder, L. (eds) Issues of Gender and Sexual Orientation in Humanitarian Emergencies. Humanitarian Solutions in the 21st Century. Springer, Cham. https://doi.org/10.1007/978-3-319-05882-5_3
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