Trump’s new asylum rules could end access for LGBT+ asylum seekers


While the country and world is focused on the surging coronavirus pandemic, the Department of Justice and the U.S. State Department are working quietly to expand the anti-LGBT+ influence of the Trump administration abroad.

As reported here in recent weeks, Secretary of State Mike Pompeo has brought numerous anti-LGBT+ conservatives into the State Department to work in USAID and other global outreach areas at State. The impact on LGBT+ people will be extensive and damaging as Pompeo has repeatedly defined his role at State as one that will incorporate his evangelical perspective into the State Department’s management, particularly with regard to disbursement of funds for programs that would aid LGBT+ people abroad.

Pompeo has never hidden his anti-LGBT agenda, which is detailed by GLAAD in their Trump Accountability Project.

Now the DOJ has joined the State Department in adopting a new and dangerous immigration plan that will effectively bar LGBT+ asylum seekers.

New rules proposed by the DOJ would end asylum for LGBT+ individuals fleeing persecution from the over 70 countries that criminalize same-sex consensual sex between adults, including some which impose the death penalty for such acts.

They would also radically impact sanctuary cities like Philadelphia in their efforts to protect those seeking asylum. In addition, there are many other countries, including Poland and Russia, in which being openly gay or lesbian is not illegal but still extremely dangerous.

The 161-page proposal revamping and tightening the rules for application for asylum would effectively end asylum as it has been established in the U.S. via the United Nations 1951 Convention and the 1967 Refugee Protocol.

Asylum for refugees has been a long-time concern for President Trump, who has claimed that asylum seekers are either criminals, people who want to take jobs from American citizens, or people who want a free financial ride via the U.S. safety net.

This new election-year gambit will have dire consequences for LGBT+ people seeking asylum and will have lasting impact beyond the Trump administration. The coronavirus pandemic has already been used by many governments to create new and oppressive restrictions on LGBT+ people, as has been reported regularly in this column. In addition, recent elections like those in Poland and Russia have catapulted anti-LGBT+ agendas and referenda forward.

The new Trump rule requires adjudicators to consider whether an LGBT+ individual could escape persecution by moving to another part of their country of origin, and the rule relies heavily on those distinctions made by the State Department. But as hate crimes statistics in EU countries recently suggested, LGBT+ people face targeted violence throughout the countries they come from, not just in rural versus urban areas.

It has never been easy for LGBT+ individuals to win asylum in the U.S. The Trump administration’s new rules will make it nearly impossible for LGBT+ claims to succeed. In addition, these extremely limiting new rules allow asylum officers’ and immigration judges’ discretion to deny cases that they consider frivolous. As a consequence, these Trump policies could condemn many LGBT+ people to persecution and even death.

According to advocates for LGBT+ asylum seekers, asylum officers and immigration judges need specific training to give them the knowledge and skill set to conduct in-depth analyses of those asylum seekers’ claims. 

Thousands of LGBT+ people seek asylum at the U.S. border each year to escape persecution based on their sexual orientation or gender identity. These refugees have already experienced trauma in their attempt to reach the U.S. border and have endured threats and even physical harm to themselves, partners, and family in their countries of origin. Many LGBT+ asylum seekers have written of having been tortured and raped, while others have had partners killed.

The Trump administration has already cut the number of refugees allowed into the U.S. to a record low and illegally forced asylum seekers out of the country, with many LGBT+ people among them. Several LGBT+ people have died in ICE custody, as previously reported here.

The new restrictions will disallow most access points for LGBT+ people to qualify for asylum. Chief among these is “membership in a particular social group.” Since the Clinton Administration, the “particular social group” (PSG) clause was used by people fleeing anti-LGBT persecution and discrimination to claim asylum. Being a member of a persecuted group allowed for consideration for asylum. Since it is illegal to be gay in over 70 countries, and there are myriad restrictions on being gay, transgender, gender non-conforming and non-binary in many countries as well, this is a critical access point for LGBT+ people.

The new rule would also eliminate all gender-based asylum, which in addition to impacting women fleeing domestic violence or trafficking, would impact both gay and trans persons as well as gender-nonconforming and non-binary people seeking asylum. As the recent U.S. Supreme Court ruling on unemployment discrimination explained, gay men and lesbians are often discriminated against based on gender, and trans people are discriminated against based on their gender identity.

Another restriction in the DOJ proposal is political persecution. LGBT+ people engaged in political actions have been threatened with imprisonment, torture and death. As reported here last week, Egyptian lesbian activist Sarah Hegazi, who found refuge in Canada, committed suicide in June due to ongoing PTSD from being tortured during an arrest for political activism. In the Russian republic of Chechnya, numerous gay men, lesbians, and gender-nonconforming people have been disappeared, particularly after political activity.Advocates for LGBT+ asylum seekers are urging people to contact their Congressional representatives and request Congressional oversight of the implementation of all asylum rules. They also urge people to file objections to the rules change on the Federal Register website,

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Victoria A. Brownworth is a Pulitzer Prize-nominated award-winning journalist whose work has appeared in The New York Times, the Los Angeles Times, The Philadelphia Inquirer, Baltimore Sun, DAME, The Advocate, Bay Area Reporter and Curve among other publications. She was among the OUT 100 and is the author and editor of more than 20 books, including the Lambda Award-winning Coming Out of Cancer: Writings from the Lesbian Cancer Epidemic and Ordinary Mayhem: A Novel, and the award-winning From Where They Sit: Black Writers Write Black Youth and Too Queer: Essays from a Radical Life.