Many people who are Lesbian, Gay, Bisexual or Transgender (LGBT) have been granted asylum under the particular social group category. In order to qualify as a particular social group for asylum purposes, a group must have a common, innate characteristic that they either cannot change or should not have to change because it is fundamental to their identities or consciences. Anyone who is LGBT fits these categories, because they have a common characteristic and, even if one were to argue that it could be changed, it is something fundamental to one’s identity and therefore should not be changed.
There are two issues relating to how someone who is LGBT can qualify for asylum. One is to show that the LGBT community in their home country is sufficiently visible; the other is to show that one’s treatment amounts to persecution on account of their LGBT identity.
Visibility does not mean whether or not someone looks like they are LGBT. It means whether or not the culture sufficiently considers them to be a separate group from other people. Whether or not there is sufficient visibility depends on the facts of the case, so it would be to the LGBT asylum seeker’s advantage to seek the help of an experienced asylum attorney. Generally, it is enough if the government has any discriminatory attitudes or practices directed at anyone who is LGBT.
Courts have granted claims based on LGBT status for people from Albania, Argentina, Guyana, Indonesia, Jamaica, Lebanon, Morocco, and Uganda. Courts have rejected claims from Mexico, Peru, Nigeria, and Zimbabwe. Just because a country has not had a previous LGBT asylum claim granted does not mean that it will not in the future. However, an LGBT refugee in that case would need to show enough evidence to show that their government ad discriminatory attitudes towards people in that situation.
In addition to showing that a government discriminates against LGBT people, an LGBT asylum seeker must also show persecution on account of their sexual orientation or identity. If a country makes it criminal for an LGBT person to have sex, then prosecution for that crime may be enough to show persecution. However, courts once denied asylum to a lesbian woman from Russia even though the government made her take psychiatric treatment in an attempt to “cure” her. Every case is different, so consulting with an experienced LGBT asylum attorney would be helpful.
Another form of persecution that disproportionately affects the LGBT community is persecution on account of having HIV/AIDS. Having HIV or AIDS can qualify as a social group in and of itself. Many people who have been ostracized from their community or denied medical treatment on account of being HIV positive have been successful in obtaining asylum. Note that while the U.S. used to deny entry to anyone who was HIV positive, this is no longer the case.
If you are LGBT and you have been persecuted on account of your sexual orientation or sexual identity, talk to an experienced asylum attorney.