13. Working with LGBTQ/H Asylum Seekers

The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.

If this is your first case working with an LGBTQ/H client, you may be unsure of which questions are appropriate to ask and which are not.

The basic rule, as with all aspects of asylum cases, is to be respectful and non-judgmental and, for the most part, to limit your questioning to issues that are relevant to the development of the case. If you are LGBTQ/H-identified yourself, you may want to disclose this fact to your client if you believe this will make them feel more comfortable. On the other hand, you may feel comfortable not disclosing personal details of your life to your client. There is no right or wrong approach, but the more comfortable you feel with your client, the more comfortable you will make them feel to open up about the basis of their claim.

Remember that sexual orientation, gender identity, and HIV status are all separate issues. An applicant may have claims based on more than one of these issues simultaneously, but you should treat each issue separately. Don’t make assumptions. Just because and applicant is living with HIV doesn’t mean that they’re LGBTQ; just because an applicant is transgender doesn’t mean that their romantic relationships are with persons of the opposite gender.

13.1 Working with Lesbian, Gay, and Bisexual Clients

It is important to understand that every client is different. Some clients will be very open about their sexual orientation, while others may feel very reticent to talk about an aspect of their identity that they perceive to be a “problem.” Follow your client’s lead, make them feel comfortable, and understand that it will take time and several meetings before they may begin to reveal information about their case.

It is often a good idea to use the same language that clients use to describe themselves. Thus, if your client refers to herself as a “lesbian,” you can ask her, “When did you first realize that you were a lesbian?” If she uses the word “gay,” use the word “gay.” If your client calls herself a lesbian, it is best not to refer to her as “homosexual,” because this word often has negative clinical connotations.

Remember that clients who come from different cultures that are not as open about LGBTQ/H issues may not use the same terms to talk about their sexual orientation. Thus, you may ask your client, “When did you come out as a lesbian?” and she may not know what this means. Use your common sense, and don’t leap to conclusions because your client expresses their sexuality in a way that’s different from you (even if you are LGBTQ/H-identified yourself).

If your client is bisexual, explore what this means to them. Sometimes clients from very homophobic cultures will self-identify as bisexual rather than gay or lesbian, even though they don’t really have any interest in the opposite sex, because bisexuality seems less taboo than homosexuality. On the other hand, if your client has only had relationships with members of the opposite sex, and is not sure if they will ever act upon their attraction to others of the same sex, it may be impossible to prove that they a member of the particular social group of bisexuals. See Section # 11.2 for more information about bisexual claims.

» Practice pointer: Avoid the terms “sexual preference” and “lifestyle.” “Sexual preference” sounds like the client’s orientation is not immutable, like they may “prefer” relations with persons of one sex to relations with persons of the other, but that it this preference is something that could perhaps be changed. Likewise, “lifestyle” sounds like a choice. Deciding to live in a fancy apartment in Manhattan versus renting a more reasonable priced outer borough apartment is a “lifestyle” choice; falling in love with someone of the same sex is not.

13.2 Working with Transgender Clients

If you have never worked with a transgender client before, remember the basic rules: be respectful and non-judgmental. The term “transgender” can have different meanings to different people. For some, being transgender simply means not conforming to rigid gender norms, and thus some people, for example very butch lesbians or effeminate gay men, may identify as transgender although they do not believe that their bodies do not match their gender identity.

For others, the term “transgender” means that an individual feels that the sex and gender that they were assigned at birth does not match their gender identity. Transgender people who feel this way often take medical steps to make their anatomy match their gender identity—but not all transgender people do, and no one should expect them to do so.

Transgender people often refer to the sex and gender that was assigned to them at birth as “sex assigned at birth.” This phrase, or the similar “birth sex,” is preferable to “anatomical sex,” “biological sex,” or “born a [wo]man.” The process of taking medical steps, such as hormone therapy, electrolysis, and/or surgery, to give an outward appearance that matches gender identity, is often called “transitioning.” When referring to a client’s gender or sex after transitioning, prefer “gender identity” to other phrases like “corrected gender” or “corrected sex.”

When working on the asylum claim with your client, you’ll want to ask them about any problems they had as a child. Maybe they were perceived as particularly effeminate or overly masculine, and suffered mistreatment as a result. You’ll want to find out when they first realized that they were transgender and when they began aligning their gender expression with their gender identity. You can also ask whether they have taken any medical steps to transition and whether they have any plans in the future to transition further.

Remember that most transgender people never have genital reassignment surgery. Surgery is expensive and rarely covered by health insurance. For transgender men, the surgical techniques are not as advanced as they are for transgender women. Gender identity is comprised of much more than just anatomy, and some transgender people never choose to undergo any medical steps to transition.

Also, remember that being “transgender” is not (in most cases) a third category of gender or a gender in and of itself. Transgender people, like cisgender (i.e., non-transgender) people, usually identify as either male or female. Don’t refer to your client as a “transgender”or as “transgendered”; instead, use “transgender” as an adjective, and refer to them as a transgender man or a transgender woman.

It is also important to understand that gender identity and sexual orientation are different. Transgender individuals, like cisgender individuals, may consider themselves straight, lesbian, gay, or bisexual. Don’t make assumptions about your client’s sexual orientation based upon their gender identity. On the other hand, remember that even if your client identifies as straight, they may be perceived as gay or lesbian in their country of origin and may fear persecution on this basis. For example, if a transgender man had a relationship with a woman in his country in the past, people in his community may have considered the relationship as lesbian, even if the applicant and his partner viewed the relationship as straight.

13.3 Working with Clients Who Are Living with HIV

If your client’s case is based in whole or in part on their HIV status, you’ll need to get some information about their health. Remember that HIV and AIDS are not synonymous: HIV is a virus that may lead to AIDS. Your client can be living with HIV without having full-blown AIDS. It is only after an individual has suffered an AIDS-defining symptom, or had their CD4 cell count (a measure of helpful white blood cells per cubic millimeter of blood) fall below 200, that they receive an AIDS diagnosis. Once a person is diagnosed with AIDS, they will always be considered to be living with AIDS, even if their CD4 cell count rises and/or their symptoms go away. You should be prepared to educate the adjudicator about the difference between living with HIV and receiving an AIDS diagnosis. For information about AIDS-defining symptoms, see www.health.state.ny.us/diseases/aids/facts/questions/appendix.htm.

You should find out when your client was diagnosed with HIV, as this will generally be relevant to the case. Sometimes a recent HIV diagnosis can be used as an exception to the one-year filing deadline. On the other hand, if your client was diagnosed with HIV in their country of origin, it will be important to elicit whatever information you can about problems they experienced as a result of their HIV status.

How your client contracted HIV is generally not relevant to the case. Unless your client believes that they contracted HIV as a result of the persecution they suffered (for example by being raped) there’s probably no reason to question your client about how they may have contracted HIV.

You should make sure that your client is currently receiving medical care, and if they are not, you should try to find an appropriate referral for them to do so. As an attorney, it is generally not appropriate for you to give your client medical advice, or to counsel them about HIV transmission. If you believe your client is not getting appropriate medical treatment or is engaging in unsafe behavior, you should refer them to an appropriate medical/social service professional. The non-profit organization that screened the case should be able to provide you with such referrals.

You should talk with your client about any medical problems they’ve had as a result of their HIV status, whether they’ve ever been hospitalized, and what medications, if any, they are currently taking. You should get a letter from their medical and/or social service professional detailing the course of their illness, what medications they are currently taking, and what would happen if the medications were no longer available.

Some states, such as New York, have very strict laws about revealing confidential HIV information. Before a medical and/or social service professional can speak with you about a case, your client will have to sign a specific HIV release form. Although attorneys are not strictly required to have a client sign such a release before disclosing their HIV status (for example to DHS), it is best practice to have your client sign such a form. The form used in New York is available at www.health.state.ny.us/forms/doh-2557.pdf.

This Manual is intended to provide information to attorneys and accredited representatives. It is not intended as legal advice. Asylum seekers should speak with qualified attorneys before applying.

The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.

This handbook is intended for use by pro bono attorneys and immigration attorneys working on LGBTQ/HIV asylum cases.

Self-help asylum guides for LGBTQ and HIV-positive people without attorneys.


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