Asylum and the dilemma of ersatz protection at home for LGBT persons
During his 30-minute speech at the United Nations General Assembly yesterday, Brazil’s president Jair Bolsonaro made no mention of challenges sexual and gender minorities face in his country. Rather, he explicitly evoked family and traditional values and the myth of an ideology, besides God’s blessing, and spoke of “uninterrupted attacks on family and religious values that shape our traditions.” He was speaking to leaders of countries who at the end of the day might need to deal with the problems Bolsonaro neglects.
According to the Gay Group of Bahia, 420 people from the LGBT community were killed in 2018 in Brazil. In the same year, the national human rights body Disque100 received 1,685 reports of violence, discrimination and other abuses against LGBT people. In 2019 year alone, there have been several media accounts of LGBT aggression and killings, and the Dique100 June partial report reveals 513 complaints have been filed. Dandaras, Jeffersons, and many other victims whose future has been stolen away have their cases kept in the dark.
Failing to find support in their own country, members of the LGBT community have turned to international protection, including under asylum and refugee laws.
I spoke with a Brazilian who was granted asylum in the United States about a decade ago, Flavio Alves. He told me “someone from the government came to my house one day and said that my life was in danger. I only had a few hours to grab my passport, everything I could get in my luggage and came to the US. It was the only place that I could think about for refuge.” Flavio, who served in the military, had published a book about the experience of gay men in the military. He received death threats and was told of the disappearance and beatings suffered by the gay men he had interviewed for his book.
A 2011 New York Times account tells how Romulo Castro filed his asylum claim in the US. Castro’s application described the abuse he faced by police officers after leaving a gay club in Maranhão. The officers forced Castro to perform oral sex by threatening him with arrest for cocaine possession, which they would plant on Castro if he did not obey. Castro attended his asylum interview dressed as a drag queen and was ultimately granted asylum.
Data published by the Department of Homeland Security shows that between 2008 and 2017, 486 Brazilians were granted asylum, affirmatively or defensively, in the United States. Many applicants claim that they have been persecuted — or fear persecution by state agents or society at large — based on their race, ethnicity, or political affiliation. Other Brazilians have claimed asylum in the US on the grounds of LGBT issues. The 1993 precedential decision known as the Tenorio case, represented “the first widely publicized instance in which the United States has granted asylum or similar relief based on persecution due to one’s sexual orientation. Tenorio was severely injured in a ‘gay bashing’ incident in Rio de Janeiro in 1989.”
Flavio tells me the prospect for LGBT asylum seekers in the US does not look good today. Trump’s policy towards migrants and the LGBT community has not been the cream of the crop. He’s right. This year, Washington denied authorization to embassies, including in Brazil, to fly the rainbow flag as a sign of support to the local LGBT struggle during June, pride month. Under Obama, a general authorization for such had been granted. Harking back to the crooked landscape in Brazil, Flavio highlights that “because trans people tend to be more visible, especially transwomen, they become an easy target at the hands of perpetrators.”
Unlike the so-called hors milieu in France –people who discreetly perform homosexual acts but allege to hold no homosexual identity–, gender expression of people whose identities do not match expected social stereotypes or their sex at birth might make them more vulnerable. As stated elsewhere, trans people, for instance, are often the first in the firing line, and usually the most marginalized represented within the acronym. Brazil was once reported as the deadliest place on the planet for trans people.
In France, the UN agency for refugees and asylum-seekers, UNHCR, acknowledges that 20 Brazilians had claimed asylum in the country up to mid-2018. According to the French office for refugees and stateless persons, OFPRA, there have been 33 Brazilian claims for asylum so far for this year. Among them is Pamella, a transwoman who fled Brazil to escape violence and the caste-like atmosphere that relegates people like her to an almost non-citizen status in many ways, including professionally. “In Brazil, most transsexuals fall into prostitution… And that disgusts me,” she says. “Why cannot they be nurses, teachers, bus drivers, etc.? Why are they forced to live at night, to live in hiding?”
Erika, another Brazilian trans, lives in France where she has been able to get the medical treatment she needs. Yet, her case may now be turned down following shifts in the policy for people like Erika in refugee-like situation. In Brazil, she had to turn to prostitution and had been assaulted several times. “Here is not the dream but I have security,” she says.
Most recent data by the UNHCR shows that up to mid-2018 there were about one thousand Brazilian refugees around the world who fled for various reasons — notably to the US, Europe and Canada, including LGBT fleeing persecution. Since 2002, the UNHCR recognizes LGBT as a group entitled to protection under the 1951 Convention.
On June 13 this year, Brazil’ Supreme Court ruled discrimination based on gender and sexual orientation be considered a crime, just as racism already is under Brazilian hate crime law, and Congress laws on the topic remain pending. But the culture of tolerance among the population and within state institutions may linger — the mechanisms to prevent, fairly investigate and address crimes are still subject to machismo values epitomized by president Jair Bolsonaro. The president repeatedly made LGBTphobic remarks over his campaign for office, and a member of the lower house of Congress, the first openly gay to be elected, has left the country after death threats against him and his family. One may expect that bigger cities will be more open to diversity; though in capitals like Sao Paulo and Rio de Janeiro, conservatism and, as we see today, the new Brazilian right-wing have come to rise (Bolsonaro had the majority of votes in most of the capitals).
In view of recent legal achievements, are LGBT people in Brazil trapped, victims of a moment in the country’s history where protection of LGBT rights starts to make headway, but public acceptance is still low and violence considerably high? The environment in Brazil, the country to the biggest pride parade in the world, leads people to believe it is a safe one for the LGBT community. But is it yet? Now that LGBTphobia is punishable as racism is, how soon may sexual minorities also find their representativeness in classroom education similarly to what Law 11645/2008 mandates for the teaching afro-Brazilian and indigenous history and culture? How long will it take, for instance, for gender identities and sexual orientation to be included in the formal educational curricula, similar to what just happened in Illinois not long ago?
It is shameful for a country to see its citizen forced to leave owing to either the dearth of criminal sanctions or the failure to effective protect them. Countries that have reached higher levels of acceptance and ensured protections towards inclusiveness and equality of LGBT people also have higher acceptance of other minorities. A 2017 study by the OECD affirms there is a positive relationship between acceptance of homosexuality and positive attitudes towards migrants — France and then the US come after Sweden, the leading country in this comparison.
The judicial ruling to criminalize LGBTphobia intended to ensure the fundamental rights of LGBT people in Brazil. But as long as legal measures don’t deliver concrete protection and policies under strongmen rule, asylum should be a remedy the international community needs to provide. It is not a simple one, and many red flags have been raised regarding the procedures immigration authorities use to judge a person’s LGBT identity, their belonging to a social group and the credibility of narratives. But as expressed by Erika, Flavio and others, having to return home would mean having to conceal one’s sexual and identity expressions (at best trying to be hors milieu), live in fear and face restrictions to partake in social and economic development. While countries refrain from showing support to advance the human rights of all people beyond their borders, they should at least respect their obligations to grant protection within their jurisdiction to those fleeing perils elsewhere.
