Churchill Fellow Senthorun Raj has shared a detailed report on asylum and refugee seeking for LGBTI peoples, covering casework, advocacy, and decision-making relating to LGBTIQ asylum claims in the US and UK.
Sen’s report doesn’t make extensive reference to intersex, rather, he notes that “despite the increased specialist work being undertaken on sexual and gender minority asylum issues, there still remains a paucity of critical research, casework support, and advocacy on intersex asylum claims”.
Intersex status is still a new attribute in national anti-discrimination law, and the implications of that distinct status have yet to feed through into other policy areas, both nationally and internationally:
In 2007 the Yogyakarta Principles were drafted by the International Commission of Jurists to promote international human rights obligations in relation to sexual orientation and gender identity. These international principles act as persuasive interpretations of binding human rights treaties and relate to gay, lesbian and transgender people (though intersex is a notable omission from the document)…
…there are no published cases on intersex claims in Australia, the US or the UK…
However, this does not mean that such issues do not exist, rather they lie in personal tragedies, rather than community tragedies. The biological nature of intersex often has an impact from birth, resulting in a lifelong limitation of opportunities in cultures where attitudes are based more on the perception of intersex people as monsters, rather than gods. This is qualitatively different to the slow realisation of a sexual orientation or gender identity:
…intersex advocacy organisation OII Australia notes that intersex people face persecution in several countries. Specifically, persecution is experienced from early childhood through risk of infanticide, coercive surgical procedures, destitution and a lack of legal or familial recognition because of their physical sex differences.
Sen was able to identify anecdotal evidence of at least one intersex case:
Power and Lo identify there have been very few asylum cases relating to intersex in both the UK and the US. Power notes that in one case she is aware of, an intersex applicant was granted asylum at the primary interview due to their experience of abuse and social dislocation from their local community.
In his travels to the US and Europe, Sen was able to meet with representatives of Advocates for Informed Choice, in California. While the UN High Commissioner for Refugees has published guidelines on sexual orientation and gender identity, no guidelines exist regarding intersex status. Director Anne Tamar-Mattis notes:
Country information reports provide the most significant evidentiary basis on which country conditions are assessed to determine risk of persecution. Reports should be updated and clearly distinguish between lesbian, gay, bisexual, transgender and intersex experiences. This is crucial if decision-makers are to avoid conflating experiences. Tamar-Mattis, notes, for example, that country condition reports often only reference ‘LGBT’ experiences with no mention of intersex people. This must not be considered indicative of an absence of persecution, but rather evidence of the secrecy and stigma that surrounds the identification of intersex differences.
Sen notes that the UK and US have developed more nuanced guidelines; we would hope that this report would encourage a more nuanced approach in Australia.
Our former president, Gina Wilson, has met with the Foreign Minister, Senator Bob Carr, to raise these issues. We hope that further work may be possible after the federal election.