Canada extended refugee protection to men and women who feared persecution in their home countries because of their sexual orientation.
Jorge Alberto Inaudi fled Argentina in March, 1990, after he had been arrested outside a gay bar. While in detention, Inaudi was severely beaten, raped, and tortured with electric shocks by police officers. For years, he also had been blackmailed and assaulted by police, evicted by landlords, and fired by employers. He made his way to Canada and requested asylum to avoid being returned to the persecution he had suffered as a gay man in Argentina.
Inaudi had hoped to take advantage of an international treaty on asylum, the 1951 United Nations Convention Relating to the Status of Refugees, which binds Canada, the United States, and many other industrialized countries. Under the convention, states had agreed not to return any individual to a territory where his or her life or freedom would be threatened. Canada signed the convention in 1969. As of September, 2004, 142 states had ratified the convention.
The 1951 convention does not, however, protect all of the world’s refugees. A person must meet the definition of a “refugee” as set forth in the international treaty. According to the convention, a “refugee” means a person who has a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion. Persons seeking asylum must therefore satisfy a two-pronged legal test. They must first demonstrate a well-founded fear of persecution, which is generally defined as a threat to life or security of the person, serious violations of human rights, or severe discrimination. Second, refugees must link the persecution they fear to their race, religion, nationality, membership in a particular social group, or political opinion. If any person satisfies the definition of a refugee, Canada and other signatory states have an international obligation not to return the person to the country where he or she may face persecution.
The convention does not list sexual orientation as a ground upon which a refugee could claim asylum. Nevertheless, as early as the 1980’s, human rights abuses against sexual minorities led some gays and lesbians to flee to countries that provide refugee protection. In making the case for asylum, gays and lesbians tried to argue that their persecution was based on political opinion, membership in a social group, or a combination of both. However, sexual orientation was not considered to fit any of the definitions of “refugee” already listed in the convention. Few of the first lesbian and gay refugees were successful in their asylum claims.
That changed on January 6, 1992, in Canada, when Inaudi was granted refugee status there based on his sexual orientation. Believed to be the first successful gay or lesbian refugee claim in Canada, Inaudi’s case was widely publicized around the world as a breakthrough in refugee law for gays and lesbians.
In reality, the first Canadian decision to grant asylum to a gay man was released several days before the Inaudi decision. On December 30, 1991, in a case referred to as Re N. (K.U.), the Immigration and Refugee Board of Canada granted asylum to a Bengali man who testified that he feared persecution in Bangladesh because he was a homosexual. The gay man testified that Bengali authorities had become aware of his homosexuality when he was caught having sex with another man. He avoided arrest by bribing a security guard and police officer. However, after continuing to receive several threatening phone calls from a police officer, he fled the country and arrived in Canada on June 16, 1990. In supporting his claim for refugee status, the Immigration and Refugee Board concluded that there was a reasonable chance that the Bengali man would be subject to severe and excessive punishment because of his homosexual practices. While his identity was kept confidential, the Bengali man had in effect made the first successful refugee claim in Canada to be based on sexual orientation. However, Inaudi’s case was the one that received wide media coverage and subsequently influenced asylum rules in several other countries around the world.
Despite progress made in several countries, the human rights situation for sexual minorities around the world was bleak in the 1980’s and remains so into the twenty-first century. In many countries, homosexuality is considered a mental disease by the medical profession, penalized as a crime by the law, and condemned as a sin by religion. Some countries continue to execute individuals for their homosexuality. In other countries, while executions are not the norm, criminalization of consensual same-gender relations is still common. Even when not criminalized or pathologized, gays and lesbians are provided with little protection from harassment and persecution. Most countries do not extend protection against discrimination to lesbians and gays in the workforce. Government restrictions are also placed on the freedom of expression of lesbians and gays, and community publications are regularly shut down. Gay and lesbian groups are consistently denied the right to freedom of assembly.
While an increasing number of gays and lesbians are fleeing the egregious human rights abuses against sexual minorities in their countries, refugee law in safer countries does not explicitly provide protection for sexual minorities. The legal responsibility to provide protection is engaged only if a person meets the definition of a refugee as provided for in the convention. In 1991, the main obstacle facing gay and lesbian refugees was proving that the persecution they feared was based on one of the five enumerated grounds: race, religion, nationality, membership in a particular group, or political opinion.
In Canada, most gay and lesbian refugees had argued that the persecution they face was based on their membership in a particular social group, namely homosexuals. While N. (K.U.) and Jorge Alberto Inaudi were able to convince the Immigration and Refugee Board members that gays and lesbians constitute a particular social group for the purposes of refugee law, many other refugees failed to make that case. Immigration and Refugee Board members adjudicating these claims took a variety of approaches to the question of whether lesbians and gays form a particular social group for the purposes of the convention’s definition of a refugee. It was not until a Supreme Court of Canada decision in Canada v. Ward (February 22, 1993) that the scope of a social group was clearly defined to include sexual orientation.
Canada v. Ward was not about a gay refugee claimant. However, in the course of deciding whether an Irish terrorist organization constituted a particular social group for the purposes of refugee law, the Canadian Supreme Court set forth a definition of social groups that determined, at the same time, that gays and lesbians could make refugee claims based on their membership in a particular social group because sexual orientation was an innate or unchangeable personal characteristic.
The decision settled Canadian refugee law relating to the issue of sexual orientation: Women and men who fear persecution because of homosexuality clearly fall within the enumerated grounds of persecution in the refugee convention. The holding in Canada v. Ward was quickly adopted in subsequent decisions of the Immigration and Refugee Board regarding sexual orientation. Since 1993, several hundred gays and lesbians have successfully claimed refugee status in Canada. In 1994, a Costa Rican lesbian who was assaulted by police was granted asylum; this decision is believed to be the first case of a woman obtaining refugee status in Canada based on her sexual orientation. Canada has also led the way in recognizing the asylum claims of transgender people. On July 4, 1994, the Immigration and Refugee Board released a decision in which it granted asylum status to an Iranian male-to-female transgender person.
The positive decisions in Canada established precedents that had an impact on refugee cases internationally. In the United States, the first widely publicized gay asylum case involved Brazilian Marcelo Tenorio. Tenorio had fled Brazil after being severely assaulted and stabbed outside a gay discotheque in Rio de Janeiro. On July 23, 1993, an immigration judge relied on the Inaudi case from Canada to find that Tenorio was a member of a particular social group and was deserving of refugee protection. In In re Pitcherskaia, a Russian lesbian was denied asylum in the United States despite having been beaten by militia and forced into involuntary psychiatric confinement. In her successful 1996 appeal to the United States Court of Appeals for the Ninth Circuit, lawyers representing several human rights organizations argued on her behalf that the refugee law in the United States should follow the Canadian precedents in Inaudi and Ward. In New Zealand, on August 30, 1995, the Refugee Status Appeal Authority had granted refugee status to an Iranian gay man after relying on the decision of the Supreme Court of Canada in Ward.
Many other states followed Canada’s lead and began interpreting the convention to extend asylum to women and men fleeing persecution based on their sexual orientation. Decisions in countries such as Australia, Austria, Belgium, Denmark, Finland, Germany, the Netherlands, and Sweden have found that homosexual men and women constitute a “social group” for the purposes of refugee protection. Ireland enacted a refugee law in 1995 that explicitly mentions sexual orientation in defining membership in a particular social group.
Since 1991, there has been a growing volume of sexual orientation-based asylum cases in Western industrialized states. While the early groundbreaking decisions in Canada determined the ground upon which gays and lesbians can claim asylum—namely their membership in a particular social group—many other questions remain unresolved. Since the N. (K.U.) and Inaudi cases, sexual minorities have faced other challenges in gaining asylum in countries such as Canada and the United States. Claimants must prove that they face persecution, not simply discrimination, and the line between the two situations can be difficult to determine. Claimants must also prove that authorities from their country of origin are unable or unwilling to protect them and that they have no other safe refuge inside their country. Finally, jurisdictions like Australia traditionally have required that gay and lesbian claimants explain why they cannot exercise discretion in giving expression to their homosexuality and therefore avoid persecution. Nevertheless, in the early 1990’s, the groundbreaking Canadian decisions in the N. (K.U.), Inaudi, and Ward cases opened the door to asylum protection for thousands of sexual minorities around the world.
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McClure, Heather, Christopher Nugent, and Lavi S. Soloway. Preparing Sexual-Orientation Based Asylum Claims: A Handbook for Advocates and Asylum Seekers. Chicago: Heartland Alliance for Human Needs and Human Rights, 1997. -
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1972-1973: Local Governments Pass Antidiscrimination Laws
December 19, 1977: Quebec Includes Lesbians and Gays in Its Charter of Human Rights and Freedoms
June 2, 1980: Canadian Gay Postal Workers Secure Union Protections
January 1, 1988: Canada Decriminalizes Sex Practices Between Consenting Adults
April 27, 1992: Canadian Government Antigay Campaign Is Revealed
October, 1992: Canadian Military Lifts Its Ban on Gays and Lesbians
April 2, 1998: Canadian Supreme Court Reverses Gay Academic’s Firing
June 28, 2002: Irish American Lesbian Gains Canadian Immigrant Status
June 17, 2003, and July 19, 2005: Canada Legalizes Same-Gender Marriage