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ABSTRACT
This article discusses the case of refugees who are LGBT, and the possible grounds for using LGBT status as a basis for prioritizing LGBT persons in refugee admissions. I argue that those states most willing and able to protect LGBT persons against a variety of (also) non-asylum-grounding injustices have strong moral reasons to admit and prioritize refugees with LGBT status over non-LGBT refugees in refugee admissions. These states – typically, Western liberal democracies – are uniquely positioned to provide effective protection for refugees who are LGBT, owing to the failures of other, also refugee receiving, states to do so. The case for prioritizing refugees with LGBT status is built upon two interrelated factors. First, on the specific vulnerability of LGBT persons to a variety of (also) non-asylum-grounding injustices, and second, on the relatively low number of countries that are both willing and able to protect LGBT persons against such injustices.
Acknowledgments
Previous versions of this paper were presented at the Refugees and Minority Rights conference in Tromsø, Globalizing Minority Rights workshop in Copenhagen, Political Philosophy reading group at Queens Kingston, and the Political Theory of LGBTQ Refugees and Migrants workshop in Ottawa. I thank the participants for helpful discussions, comments, and criticisms. Special thanks to Melina Duarte, Kasper Lippert-Rasmussen, Masoud Nassor, Kerstin Reibold, Matthew Lister, Christine Stræhle, Kerri Woods, Magnus Egan, and the anonymous reviewers for written comments on some of the earlier versions of this paper.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 For criticism on the convention definition, including its inability to account for persons fleeing other sources, e.g. war, hunger, economic deprivation, or climate change, see, e.g., Gibney (Citation2004, Citation2015), Foster (Citation2009), Betts (Citation2013), Miller (Citation2016).
2 Notably, I thus begin with the assumption that states are, within certain constraints, morally permitted to exclude persons from their territory, although I wish not to take a stand on whether, in cases discussed here, the denying of admission to one of the refugees would be justified. Consequently, I aim my argument to hold both in cases where the state in question is fulfiling its duties of refugee admission (i.e. admitting as many refugees as it should do), and when it is not.
3 For an overview of the usage of criminalization criterion in LGBT cases, including the UNHCR guidance on the role of criminalization, see Jansen (Citation2013).
4 On the specifics of the discretion reasoning in LGBT contexts, see Weßels (Citation2013).
5 On the recognition of non-state agents as actors of persecution see Lister (Citation2016).
6 The distinction between active and passive state-sponsored persecution does not therefore hang on whether the perpetrator is a state- or non-state agent, but on the (often fine) line between acts that are based upon the existing legal frameworks, and those that are not.
7 For an account on how structural injustices may nevertheless lead to and enable other injustices, including persecution, see Parekh (Citation2012).
8 Examples may include family planning services (typically designed for heterosexual couples), housing benefits (that presume the social status of co-inhabitants from their gender), welfare benefits (based on the assumed status of co-inhabitants), etc.
9 With possible exception to social services, should they be, not only presumptively designed for non-LGBT persons, but also exclusively available to them.
10 For different variations of this argument, see, e.g., Carens (Citation2013), Ferracioli (Citation2014), Parekh (Citation2017).
11 For debate, see Gibney (Citation2004, Citation2015), Carens (Citation2013, 214–215), Miller (Citation2016, 89–93), Holtug (Citation2016).
12 For critique of using standard pond cases to illustrate our duties to refugees, see Owen (Citation2016). While my examples aim to avoid most of these critiques, some issues (most notably, the temporal continuity of the situation) remain.
13 Stephanie Collins (Citation2018) discusses different kinds of costs (recipient-relative, agent-relative, and ideal-relative) that may affect our duties of assistance in non-ideal circumstances. For my present purposes, I focus on the recipient-relative costs, and take the (morally acceptable) agent-relative costs as equal, while focusing on the reasons that the failure of others may bring to the agents in question.
14 For difficulties of self-closure, including the reluctance of refugees to disclose their sexuality to authorities, and the cultural variations of what constitutes ‘gay’, see Middelkoop Citation2013.
15 This is not to say that no refugee would be willing to do so, nor that the negative consequences of declaring oneself as LGBT would always be such as to deter non-LGBT persons from doing so. It is simply to point to the fact that, at least in present circumstances, such deterrents against the opportunistic usage of LGBT status exist, thus making the worry of (widespread) opportunism suspect.
16 Even those most sympathetic towards states’ right to decide their own immigration policies are typically opposed to ethnicity-based (and, albeit often to lesser extents, religion- and culture-based) criteria. Cf., e.g., Wellman (Citation2008).
17 This may not, of course, be the only normatively relevant difference between the two cases, although it is the difference that, I believe, responds most directly to the problem of homogeneity described above.
18 To my current knowledge, there are no reliable data on the effects of LGBT refugee admissions to the public attitudes towards LGBT persons. Some such data exists of the effects of other groups of refugees, e.g. the arrival of many Syrian Muslim refugees since 2015 to the general attitudes and the increase of islamophobia in Europe (cf. Osiewicz Citation2017). While the two cases are not transferrable, the more general point about the non-straight-forward relation between minority numbers and attitudes towards minority groups remains.