International Protection of transgender refugees Livio Zill Senior

International Protection of transgender refugees Livio Zill, Senior Legal Adviser, International Commission of Jurists, Geneva, 23 September 2015

1951 UN Convention relating to the Status of Refugees, as amended by its 1967 Protocol Key international treaty re: refugee protection

As of April 2015: Total No of States Parties to the 1951 Convention: 145 Total number of States Parties to the 1967 Protocol: 146 more info: http: //www. unhcr. org/3 b 73 b 0 d 63. html

1969 Convention Governing the Specific Aspects of Refugee Problems in Africa EU Asylum Acquis the 1984 Cartagena Declaration for Latin America No regional instruments in Asia Pacific

• relevance of customary international law to international refugee protection • relevance of non-refugee specific international human rights treaties, e. g. UNCAT and/or the ICCPR

Refuge Convention definition “refugee” any person who: “. . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. ”

Refugee definition critical elements: • outside their country of origin or outside the country of their former habitual residence; • unable or unwilling to avail themselves of the protection of that country owing to a well-founded fear of being persecuted; and • Their fear of persecution is based on at least one of five grounds: race, religion, nationality, membership of a particular social group, or political opinion.

Refugee v. asylum-seeker • Refugee status recognition is declaratory not discretionary – either you are or you are not a refugee • asylum seekers” persons, who have applied for asylum, but whose refugee status has not yet been determined • Asylum-seekers entitled to be considered presumptively refugee pending determination

international refugee protection cornerstone: non-refoulement principle, Article 33, Refugee Convention: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. ”

non-refoulement principle continued • considered part of customary international law and therefore binding on all states. • the principle is also explicitly incorporated in several international human rights treaties, e. g. Art 3 of UNCAT prohibiting the removal of persons to a country where there is a real risk of torture • relevant international treaty provisions, e. g. ICCPR Art 6 (right to life) and ICCPR Art 7 (prohibition of torture or other ill-treatment) interpreted as entailing non-refoulement obligations • Same for regional human rights treaties

2015 OHCHR report on SOGI based human rights violations Murders, including “honour kilings” where transphobia was a motive Torture or other ill-treatment, at hands of state or non-state actors Criminalization of transgender status, and/or real or perceived engagement in consensual sexual conduct, e. g. sex work or samesex “rehabilitation clinics” where transgender youths forcibly detained with family collusion and subjected to torture, including sexual abuse Coerced gender reassignment Discrimination and human rights violations in education (e. g. bullying), employment, housing, access to health care, social services, etc. Gender reassignment therapy, where available, is often prohibitively expensive

UNHCR Guidelines on International Protection No. 9: Claims to Refugee Status based on SOGI When self-identification and physical appearance do not match the legal sex on official documentation and identity documents, transgender people are at particular risk Efforts to change an individual’s gender identity by force or coercion may constitute torture, or inhuman or degrading treatment, and implicate other serious human rights violations, including the rights to liberty and security of person. Male-to-female transgender prisoners are at particular risk of physical and sexual abuse if placed within the general male prison population

UNHCR Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, http: //www. unhcr. org/505 b 10 ee 9. html Guideline 9. 7 Lesbian, gay, bisexual, transgender or intersex asylum-seekers Measures may need to be taken to ensure that any placement in detention of lesbian, gay, bisexual, transgender or intersex asylum-seekers avoids exposing them to risk of violence, illtreatment or physical, mental or sexual abuse; that they have access to appropriate medical care and counselling, where applicable; and that detention personnel and all other officials in the public and private sector who are engaged in detention facilities are trained and qualified, regarding international human rights standards and principles of equality and nondiscrimination, including in relation to sexual orientation or gender identity. Where their security cannot be assured in detention, release or referral to alternatives to detention would need to be considered. In this regard, solitary confinement is not an appropriate way to manage or ensure the protection of such individuals.