Disclaimer: This article was written with the US immigration system in mind and bases all data regarding countries on only those recognized by the United States, which amounts to 195 as of August 2023.

Just because you don’t hear the tree fall doesn’t mean it still stands. Still, it makes sense that you may not consider someone a refugee or asylum seeker based on their LGBTQ+ identity. The American Mindset is conditioned to picture these individuals in a specific way that often highlights race above all else. 

Nevertheless, what makes a refugee is objectively defined in The Refugee Act of 1980. It describes a refugee as “someone outside of their home country unable or unwilling to avail themselves of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a social group, or political opinion.” Certain states and some federal court cases have ruled that being LGBTQ+ falls under this definition.

However, even as recognized refugees, LGBTQ+ people face unique roadblocks at every stage of the immigration process. It starts from the reason they need to seek shelter in a foreign country in the first place: conflict at home. 

Many asylum seekers flee for similar motivations, including gang violence, war, poverty, and oppressive leadership. LGBTQ+ individuals are no different. However, their reasons are often nuanced with a distinguishing feature: the desire to live a life where they can love who they wish and express their gender freely without fear of criminalization. 

Sixty-six countries (about 34% of the world) criminalize same-sex activity, nearly half of which are Commonwealth* jurisdictions. These countries focus more on criminalizing sexual activity between men, but 41 still criminalize consensual sexual activity between women. Sadly, 12 countries even impose the death penalty or at least allow it to be a possible punishment out of many for private, consensual same-sex relations. (1) 

These kinds of laws don’t just attack LGBQ people. Trans+ individuals are persecuted across the globe. Criminalization forces them to flee to more inclusive countries so that they may gain the legal right to exist.

Currently, 14 countries criminalize trans+ people, mostly with anti-“cross-dressing” laws. Even countries that don’t outright make being trans+ illegal still have restrictions and limitations on the group. For instance, it may be a shock to learn that it’s impossible to legally change your gender in at least 47 UN member states. For the 96 countries that allow people to change their gender, only 25 do not have “prohibitive requirements” on the process. 

While these anti-LGBTQ+ laws, limitations, and restrictions push individuals out of their homeland in search of safer refuge, criminalization is not the only reason they leave. Rainbow Railroad, a global not-for-profit organization that helps at-risk LGTBQ+ people get to safety worldwide, asked those they’ve helped what safety concerns motivated them to leave.

The Rainbow Railroad 2022 Annual Report outlined the top three safety concerns: 

So, even if LGBTQ+ people are equal in the eyes of the law, some cultures and religions that dominate other parts of the world oppress LGBTQ+ people so much that they have no choice but to seek refuge elsewhere.

But what happens when they do leave? Well, just like many immigrants, it's not exactly smooth sailing. Many LGBTQ+ asylum seekers have to overcome discrimination, harsh treatment, and multiple instances of rejection before completing their journey to safety – if they even do. 

We already know that the majority of asylum applications will not get approved. Over the last 22 years, only about 30% of asylum applications submitted by those who arrive at the southwest border have been approved, according to data tracked by Syracuse University. 

By the way, the 30% who received approval likely waited years for a decision after submitting their applications. Of the 1.6 million Immigration Court cases in which asylum applications were filed since October 2000, two-thirds of a million people (667,229) are still waiting for a decision. In 2021, wait times for cases averaged about four and a half years. (3)

It should be noted that affirmative asylum cases have a somewhat lower average wait time than defensive cases – about half a year less. They also have a greater chance of success in Immigration Court. Affirmative cases are often asylum seekers who arrive at the Immigration Court through a referral by the United States Citizenship and Immigration Services (USCIS). A noncitizen must be physically in the United States to earn asylum through the affirmative process. 

Defensive cases, however, are typically in direct response to removal proceedings, such as deportation. A noncitizen may undergo removal proceedings because they were stopped at a US port of entry without legal documentation or in violation of immigration law. A defensive case may also be triggered if the noncitizen was blocked from entering the country illegally, was placed under expedited removal, then a USCIS officer found them to have a credible fear of persecution. (4)

LGBTQ+ immigrant cases may have a greater chance of being Defensive, contributing to longer wait times and lower approval rates. This is because of how many police generally treat LGBTQ+ people. Historically, the police force and the LGBTQ+ community have been at odds. From police raids of LGBTQ+ bars to street beatings, the community has faced decades of unjust treatment from law enforcement. 

The UCLA School of Law Williams Institute states that “LGBQ people are six times more likely than the general public to be stopped by police." This is partly a result of what UCLA calls a “history of targeted surveillance.” (5)

This heightened scrutiny leaves LGBTQ+ asylum seekers at greater risk of deportation since 70% of ICE arrests result from contact with the criminal legal system.

This brings us to the next issue that many LGBTQ+ asylum seekers face along their journey to safety: the horrible treatment many detainees are subjected to. Now, I recognize that this is not uniquely an LGBTQ-specific complaint. Regardless of their sexuality or gender identity, detained individuals often face inhumane conditions at the border. 

Human Rights Watch received reports from The Department of Homeland Security (DHS) in September of 2021 via the Freedom of Information Act (FOIA). These reports included information on more than 160 cases of misconduct and abuse of asylum applicants by officers within different DHS sectors, particularly Customs and Border Protection (CBP) officers and Border Patrol agents.

Human Rights Watch found these records paint a dark picture of “assault, sexual abuse, due process violations, denial of medical care, harsh detention conditions, and dehumanizing treatment at the border.” (6)

For LGBTQ+ people, being denied medical care is a critical point of suffering. Many asylum seekers who are HIV+ are not given their medication. While HIV/AIDS can impact people of all sexualities and gender identities, withholding HIV care is especially harmful to the gay community. In 2018, the CDC found that most new HIV diagnoses among men were attributed to “gay, bisexual, and other men who have sex with men.” (7)

Trans+ people in detainment often do not have access to life-saving medication either. Additionally, transgender people are often misgendered during detention and placed with the wrong populations. This can put them at greater risk for sexual assault while in detainment. 

The American Medical Association's Immediate Past Chair and M.D. Patrice A. Harris stated that “transgender prisoners are disproportionately the victims of sexual assault, suffering higher rates of sexual assault…the increased rate of violence largely stems from transgender prisoners being housed based on their birth sex, and not according to their affirmed gender.” (8)

Sadly, this denial of healthcare (and human decency in general…) continues even after individuals are granted entrance to the United States. A UCLA Labor Center study found that over half of the 550 immigrant youth interviewed in the U.S. failed to access necessary healthcare in 2013. 96% of these youth cited lack of insurance and care costs as the reasons for being unable to access treatment. LGBTQ+ children faced additional disparities due to stigma, restrictions on gender-affirming care, and discrimination, decreasing their ability to get care. (9)

Outside of issues accessing healthcare, LGBTQ+ youth and adults within the US (immigrant or not) face all types and forms of discrimination and stigmatization. And while it might not be as bad as the country they are fleeing from, LGBTQ+ refugees and immigrants in the U.S. still live under the threat of violence and human rights offenses. The main difference is that the country has legal protections against such violations and allows individuals to speak out against oppression via the First Amendment (in theory). 

Also, these individuals can now seek legal action and trust that they will be fought for by groups like Equality Florida and the Human Rights Campaign, as well as uncensored activists and watchdog media. 

Overall, the treatment of LGBTQ+ refugees and asylum seekers at the border and throughout the entire immigration process needs a major makeover. As does the treatment of all LGBTQ+ people in the US...but that would be more of a book than a blog. 

You can get involved in changing our immigration system by donating to or volunteering with organizations fighting for reform and assisting LGBTQ+ refugees and immigrants. You can also directly support those in need by privately sponsoring an LGBTQI+ refugee through Rainbow Railroad. 

If you or someone you know identifies as LGBTQ+ and needs resources, check out our “LGBTQ Refugees and Immigrants” section on our Resource Page. 

*The Commonwealth is a political association of 56 member states, the vast majority of which are former territories of the British Empire.

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