By Guilherme Manoel de Lima Viana
Human Rights • International Refugee Law • Public Policies
For many LGBTQIA+ people, leaving their country of origin is not a choice, but a survival strategy. The criminalization of homosexuality, persecution, violence and discrimination can make it impossible to live safely. When these people cross borders seeking protection, a new stage begins: the attempt to rebuild their own lives in a country that must turn legal hospitality into effective protection.
Why do LGBTQIA+ people leave their countries?
Refugee status is linked to the need for international protection in the face of persecution and serious human rights violations. The 1951 Convention Relating to the Status of Refugees establishes protection for people who, fearing persecution, are outside their country and cannot or do not want to rely on the protection of their State (UN, 1951).
In the case of LGBTQIA+ populations, persecution can be directly related to sexual orientation or gender identity. It may occur through discriminatory laws, criminalization, violence by state or private agents, family and social exclusion, and restrictions on access to basic rights.
The Yogyakarta Principles recognize the right of every person to seek and enjoy asylum in other countries to escape persecution related to sexual orientation or gender identity (YOGYAKARTA PRINCIPLES, 2006).
In certain countries, the situation can reach extreme levels. The project underlying this article presents Iran as an example of a country whose legal system provides severe punishments for certain homosexual conduct (IRAN, 1991). Situations like this help understand why international protection can represent, for some people, a matter of survival.
The problem does not end when the border is crossed
Arriving in the host country does not necessarily mean the end of vulnerability. An LGBTQIA+ asylum seeker may encounter language barriers, cultural difficulties, lack of support networks and, especially, difficulty speaking about an identity that had to be hidden for years.
Andrade (2016b) highlights that the first step to adequate assistance is to enable the LGBTI person to disclose their sexual orientation or gender identity. This can be especially hard for those coming from countries where these traits are criminalized or socially persecuted.
Thus, there is an important contradiction: the same concealment strategy that may have protected the individual in their country of origin can hinder the presentation of their story in the asylum claim.
Andrade (2016a) draws attention to the under‑reporting of these cases. Not all LGBTQIA+ people state sexual orientation or gender identity as the declared reason for displacement, even when these traits are linked to experiences of violence and persecution.
The interview and the credibility challenge
The interview is one of the most important stages of the refugee status determination process. However, it must take into account that sexuality‑related experiences are not the same for everyone.
França and Oliveira (2016) point to elements that can help understand the applicant’s trajectory, such as self‑identification, childhood, self‑perception, gender identity, non‑conformity to social norms and family relationships. The authors note, however, that there is no set formula of questions nor a set of correct answers.
This perspective is essential to avoid stereotypes. A homosexual person may never have had a same‑sex relationship in their country of origin precisely because they feared being discovered. The absence of relationships, therefore, cannot automatically be used as an argument to question their credibility.
Gorisch (2017) observes that, out of fear and insecurity, an LGBTI person may not reveal their condition immediately upon arriving in the country where they seek asylum. Late disclosure must be understood within the persecution trajectory and not automatically interpreted as falsehood.
It is also necessary to consider the relationship with authorities. Andrade (2016b) notes that, in Brazil, asylum requests involve the Federal Police, whereas in many countries of origin the police can be precisely one of the agents responsible for persecuting LGBTI people. Building trust, therefore, is a fundamental part of assistance.
When reception can also produce vulnerability
Another little‑discussed point is the situation of reception centres. These spaces should provide protection, temporary housing and assistance, but can reproduce discrimination situations.
Andrade (2016b) shows that LGBTI immigrants and refugees can suffer discrimination in reception centres because of their sexual orientation or gender identity. This shows that offering a place to sleep is not enough to guarantee proper reception.
A truly protective space needs to provide safety, respect for identity, privacy and professionals trained to deal with diverse trajectories. Protection must continue after the interview and the formal recognition of refugee status.
Brazil’s role: from legal protection to effective protection
Brazil has legal mechanisms to protect refugees and an institutional structure for assessing claims. Law No. 9.474/1997 and the work of CONARE are central elements of this system.
In May 2023, a simplified procedure was announced for analyzing certain asylum applications from LGBTQIA+ people coming from countries that criminalize these populations or impose severe penalties because of sexual orientation or gender identity. The measure represents an institutional recognition of specific persecution situations.
Despite these advances, legal protection alone does not solve the everyday obstacles. Refugees need to access work, health care, education, housing, documentation and social assistance, as well as find environments where they are not again victims of discrimination.
Bertoncello and Cárnio (2017) argue for the importance of direct participation of immigrants and people in refugee situations in the construction of public policies. This participation is especially important for LGBTQIA+ refugees, because it allows policies to be built from the concrete experiences of those who have gone through the process.
More than welcoming: enabling rebuilding
The LGBTQIA+ refugee experience cannot be reduced to the moment the asylum request is filed. The trajectory starts before the border and continues after protection is recognized.
As the reviewed literature shows, violence, fear, silence, trust difficulties and discrimination can accompany the individual throughout different stages of their journey. Therefore, specific public policies are needed so that international protection does not remain only on paper.
Building a truly inclusive society also depends on education, awareness and combating prejudice. Human rights protection does not end when the State recognizes a person as a refugee; it materializes when that person can live safely, autonomously and with dignity.
Conclusion
The search for asylum by LGBTQIA+ people reveals a particular dimension of forced displacement: in many cases, the individual leaves behind not only their country but a life marked by the need to hide who they are. Brazil has important instruments to offer protection, but still needs to face challenges related to professional training, interview quality, safety of reception spaces, data production and social integration.
Recognizing these specificities is essential for the right to asylum to become effectively a right to protection. More than allowing entry and preventing return to a country of persecution, welcoming means creating conditions for the person to rebuild their life without returning to fear and discrimination.
Key points
• Persecution based on sexual orientation or gender identity can ground the search for international protection;
• The applicant’s silence does not necessarily mean an absence of persecution;
• Interviews should avoid stereotypes and consider the individual's trajectory;
• Reception centers need to be safe and inclusive spaces;
• Public policies must include the participation of the refugees themselves.
References used
ACNUR. UN Refugee Agency: refugee or migrant? UNHCR encourages using the correct term. 2015.
ANDRADE, Vítor Lopes. Refugees by sexual orientation in Brazil: legal and social dimensions. 2016.
ANDRADE, Vítor Lopes. Challenges in service, reception and local integration of immigrants and LGBTI refugees. Caderno OBMigra, v. 2, n. 2, 2016b.
BERTONCELLO, Fernando R. M.; CÁRNIO, Thaís Cíntia. Gender refugees: which references to articulate public policies? Cadernos de Dereito Actual, 2017.
FRANÇA, Isadora Lins; OLIVEIRA, Maria Paula. “LGBTI Refugees”: gender and sexuality in the articulation with asylum in the international rights context. Travessia – Revista do Migrante, n. 79, 2016.
GORISCH, Patrícia. Human rights and protection of LGBTI refugees. RIDH, Bauru, v. 5, n. 1, 2017.
IRAN. Islamic Penal Code of Iran. 1991.
JUBILUT, Liliana Lyra. International refugee law and its application in the Brazilian legal system. São Paulo: Método, 2007.
ONU. Convention Relating to the Status of Refugees. 1951.
PIOVESAN, Flávia. Human rights and international constitutional law. 13. ed. São Paulo: Saraiva, 2012.
YOGYAKARTA PRINCIPLES. Principles on the application of international human rights legislation concerning sexual orientation and gender identity. Yogyakarta, 2006.
ROSAS, Paula. The countries that punish homosexuality with the death penalty. BBC News Mundo, 2023.
VIEIRA, Paulo Jorge. Mobilities, migrations and sexual orientations: journeys around real and imagined borders. Ex aequo, n. 24, 2011.
Guilherme Manoel de Lima Viana
He is a lawyer and researcher in Human Rights, focusing on the rights of migrants and refugees, diversity and protection of vulnerable groups. He holds a master's degree in Information Society Law and in Human and Social Sciences, in addition to working as president of ProMigra – Project for the Promotion of Migrants' Rights, linked to the Law School of the University of São Paulo (USP).