In the asylum procedure, the concept of 'gender' relates to persecution resulting from a person's sex. Women are the principal victims of this type of persecution. Some examples of gender-related persecution: forced marriage, honour-related violence, domestic violence, rape, forced prostitution...
The concept of 'gender' also includes sexual orientation and gender identity. A person (whether man or woman) can be persecuted as a result of his or her sexual orientation (homosexuality, bisexuality...).
Persecution as a result of sexual orientation and gender identity
Persons belonging to a sexual minority (i.e. whose gender identity or sexual orientation is different from the majority population) may face gender-related persecution in their country of origin. The CGRS often examines asylum applications from victims of gender-related persecution based on their sexual orientation.
If there is a well-founded fear of persecution or if the existence of a real risk is established, refugee status will be granted. In this case, the persecution is considered to result from membership of a particular social group, as defined in the Act of December 1980 regarding the access to the territory, residence, settlement and removal of foreigners.
The CGRS has appointed a gender coordinator for its policy regarding gender-related persecution.
The course of the interview
Asylum applicants who fear gender-related persecution may find their story very hard to recount. The social norms the applicants may have internalised and the nature of the persecution can lead to a feeling of shame, preventing them from mentioning certain facts concerning their persecution. For this reason, the CGRS has taken various measures to facilitate the interview.
The applicant can ask to be interviewed by a male or female protection officer and interpreter. The applicant must, however, clarify the reasons for this request. The CGRS will try as far as possible to accommodate the wishes of the applicant.
The CGRS gives special instructions for the interview and specific training to protection officers, in order to ensure that applicants fearing gender-related persecution are interviewed properly. The CGRS also organises special training for interpreters.
During the interview, the protection officer will ask open questions, lend an attentive ear to the applicant, and avoid clichés and stereotypes. The protection officer will not ask any questions about the sexual activities of the applicant.
Assessment of an asylum application
It is up to asylum applicants to convince the CGRS of their sexual orientation (or gender identity) and of the fact that they are indeed subject to persecution in their country. The applicant has to provide relevant information and details to convince the CGRS that the acts of persecution actually took place or that, in case he or she were to return to the country of origin, there will be a risk of persecution because of his or her sexual orientation or gender identity. The applicant’s statements have to be consistent, credible and must not contradict objective information available to the CGRS.
When assessing an application for international protection from an applicant who claims being persecuted due to his or her sexual orientation or gender identity, the general situation in the country of origin is taken into account (on the basis of available information and reports) as well as the applicant's individual situation.
The fact of being homosexual, bisexual or transgender is in general not sufficient for recognition as a refugee. This depends on the situation in the country of origin: for some countries this is a sufficient ground but for most countries it is not.
When assessing an applicant’s gender-related fear of persecution, various aspects are taken into account:
- the statement about the sexual orientation or gender identity must be credible
- if the statement is credible on this point, the risk of persecution in case the applicant were to return to the country of origin will be examined
- the fact that homosexual acts or homosexuality is a criminal offence in the country of origin is not sufficient. The relevant laws must also be applied in practice in the country of origin. However, the existence of laws banning homosexual acts or homosexuality can be an indication that the authorities will not offer any protection in the event of persecution.