Working with LGBT Clients and SOGI Claims

You are likely to work with LGBT clients or clients with claims based on sexual orientation and gender identity (SOGI). This page will help prepare you for that by discussing why this population is particularly vulnerable and describing some strategies to employ during interviews to help ascertain whether the client has an SOGI claim and to help these clients feel safe. It will also discuss questions not to ask during the interview.

76 countries have laws on the books prohibiting same-sex relationships, with penalties ranging from the death penalty to several years in prison, according to the ILGA. Even in countries with no law prohibiting same-sex relationships, many LGBT people are subjected to violence and discrimination on the basis of their sexual orientation and/or gender identity. This can be a highly vulnerable population, particularly when compounded with the vulnerabilities caused by forced migration, and it is also a population that is difficult to identify, as LGBT people do not have any physical identifiers, and sometimes choose not to disclose their sexual orientation and/or gender identity.

As a result of the persecution and stigma that many LGBT refugees experience in their home countries, many of them may be reluctant to access assistance in countries of asylum. LGBT refugees may not feel safe telling authority figures why they have fled their country for fear that they will be persecuted again. It is important to be aware of this so that you are prepared to reassure the client and make him or her feel safe to express why they fled their home country.

LGBT refugees often feel highly isolated and insecure in the country to which they flee because they fear that people in the new country will not be welcoming of them. In addition, they may be isolated or ostracized from their own refugee community, because of rejection of diverging sexual preference. As a result of this isolation, LGBT refugees are at a higher risk of developing Post Traumatic Stress Disorder. Please refer to the Populations with Mental Health Needs page to learn more about how to work with a client who has PTSD.

In many cases proving refugee status based on actual, or perceived sexual or gender identity, within a humane investigatory framework is extremely difficult. Prejudice may be entrenched within the judicial or administrative systems of countries of asylum as much as in countries of origin. Jurisprudence may not recognize LGBT clients as a particular social group. As a result, it is particularly important that LGBT clients have a legal advisor.

Interviewing

There are eight relevant factors to SOGI claims that you may wish to explore with your client during an interview. Keep in mind that a negative response or a lack of response to a particular area of questioning should not necessarily be considered evidence that the person does not have a SOGI claim.

The eight relevant areas are:

Self identification of the client as LGBT
  • If the client does not identify as LGBT that does not mean that he or she does not have an SOGI claim. There may be cultural reasons that he or she does not identify as LGBT
Self-realization or “coming out”
  • This relates to the person coming to terms with his or her sexual orientation or gender identity and communicating it to other
Differences experienced in childhood and non-conformity
  • Most LGBTI people realize that they are different long before they realize who they are sexually attracted to.
When appropriate, gender transition
  • Undue weight should not be placed on this factor, but if the client has taken steps to transition to another gender it may be useful to discuss that
Family relationships, including whether the client is married to a person of another gender
  • If a client is married or was married to a person of another gender that should not be seen as an indication that he or she has no SOGI claim.
  • If appropriate, ask questions about the circumstances surrounding the marriage
Romantic and Sexual Relationships
  • Approach this line of questioning carefully and focus more on relationships than sexual activity.
  • If the client has not had any same sex relationships that is not necessarily a sign that he or she does not have a SOGI claim.
Community relationships
  • It may be useful to discuss the client’s knowledge of LGBT groups, contacts, and activities in his or her country of origin.
  • Do not assume that the client should have knowledge of these groups.
Religion
  • It may be fruitful to explore how the person views the relationship between his or her religion and SOGI.

Difference, stigma, shame, and harm approach

LGBT clients may be reluctant to talk about their past experiences for fear that they will be harmed again. They may also find it difficult to talk about something as private as sexual orientation or gender identity. As a result, it may be difficult to get your client to open up about his or her sexual orientation. One strategy that you could employ is the DSSH model, which S. Chelvan developed. It focuses on difference, stigma, shame, and harm in order to ascertain the refugees’ story. Below are examples of different types of questions that you could ask, based on this model, to help your client open up about his or her SOGI claim.

Difference

  • Can you tell me how you describe your sexual orientation or gender identity?
  • Do you know how long you have felt this way about your sexual orientation or gender identity?
  • How has this impacted the way you live your life?
  • How are your experiences different from those of your friends, family members, and community?

Stigma and shame

  • Have you told anyone about your sexual orientation or gender identity? How did they react?
  • If you haven’t told anyone, why is that?
  • Do you think other people know or have made assumptions about your sexual orientation or gender identity? If so, what was their reaction?
  • Can you recall any situations in which you felt stigmatized by your community?

Harm

  • What makes you think you have been persecuted or are likely to be persecuted based on your sexual orientation or gender identity?
  • What steps have you taken to keep yourself safe?
  • Why did you leave your country or origin?
  • Why do you think it is unsafe for you to return?

In the interview space

It is also important that you create an interview space that feels safe and non-judgmental. The following are some suggestions of how to make your client feel more comfortable when you are interviewing him or her.

Creating a safe space

  • Allow the client to chose whether he or she would like a friend or family member present.
  • Some people may feel more comfortable recounting traumatic events if there is a trusted person with them.
  • Others, however, may not feel comfortable speaking about their sexual identity in front of their family members or friends.
    • As a result, it is important that you identify each member of a case separately to see if he or she has a refugee claim that is different from the main applicant.
    • Make sure that you chose a translator who is sensitive to LGBT language, and who is open minded enough to gain the client’s trust.

Terminology

  • Be mindful that your client may not be familiar with the language or terminology to express his or her sexual orientation.
    • Be prepared to use several different words or phrases to describe what you are asking about.
  • Use the same language that the client did to describe him or herself
    • i.e. if the client described himself as gay use that word rather than homosexual.
    • It may be the case that your client is only familiar with terms that are considered slur, because his sexual or gender identity was always approached from a negative point of view. As legal advisor you can explain the difference between words and connotations, and equip him with words to describe his identity.
  • For transgendered clients, ask the person which pronoun he or she would like you to use.

Interview proceedings

  • Provide the client with an overview of how the interview will be conducted, the areas of questioning, and the right of the client to take breaks as necessary.
  • Remind the client that the interview and anything else he or she tells you is confidential.
  • Be particularly sensitive when asking about past sexual assaults.
    • Your client may feel ashamed of what happened and as a result it could be very difficult for him or her to discuss the event.
    • Begin by asking easy questions and gradually ease into asking more sensitive ones.
    • If you have to ask a question that is intrusive about the person’s sexual history, explain to your client why it is necessary.
  • It may make sense to use the same interpreter throughout the consultations with the client, and with all LGBT clients.

Assumptions and prejudice

  • Do not assume that being a sexual minority is a lifestyle or a choice.
  • Keep in mind that some people who are fleeing from violence based on a same-sex romantic or sexual partner do not consider themselves to be LGBT. A sexual or romantic encounter does not equal an identity as an LGBT person, and in some countries and contexts there is no concept of an LGBT identity. They may still be stigmatized and rejected by their community for it, as an imputed sexual identity or because the encounter is considered disgraceful.

Questions not to ask

  • Do not ask questions based on stereotypes.
  • Do not ask about the client’s knowledge of gay “icons” like Madonna.
  • Do not ask questions about the person’s sexual practices.
  • Do not request or review any evidence depicting sexual activities like videos or photographs of the person engaged in sexual conduct.
  • Do not request or review any documentation of ‘tests’ used to demonstrate the client’s sexuality like phallometic testing.