Many transgender individuals leave their home countries to escape the persecution they face because of their transgender status. It is estimated that between 15,000 and 50,000 of undocumented adults in the United States are transgender. Once in the U.S., transgender asylum seekers face a number of unique obstacles to meeting the statutory requirements for asylum and securing a grant of asylum.
Coming Out and Proving Identity
In order to make an asylum claim based on fear of persecution because of transgender status, an individual must reveal their transgender status to an asylum officer. For those who have experienced traumatic persecution and discrimination in their home countries and have grown accustomed to hiding their gender identity, revealing transgender status to a foreign asylum officer can be extremely difficult. Many asylum seekers feel that transgender identity is a personal, private fact not for lawyers and immigration officials to know and may even believe that their transgender identity could endanger their asylum claim.
Openly transgender asylum seekers risk solitary confinement and/or victimization if detained. Asylum seekers compose 40 percent of the mandatorily detained immigrant population, and transgender detainees are at a significantly greater risk of physical and sexual violence at the hands of guards and other inmates. Transgender detainees are often placed in solitary confinement, otherwise considered a punitive measure, to protect them from such violence. Additionally, because transgender individuals in the U.S. face significant discrimination and violence in society in general, coming out as transgender in order to seek asylum may pose great risks, even if the asylum seeker is not detained. Those who identify as transgender are 28% more likely to experience physical violence than gender-normative individuals.
In addition, part of an asylum application based on transgender status is persuading the judge that the applicant is transgender. Strong asylum applications for transgender individuals require that the individual's affidavit including detailed information about the applicant's coming out experience, deeply personal information. Revealing this information and proving one's sexual identity to a judge might be a very traumatic experience for a transgender asylum seeker, who may be unwilling to undergo it.
The One-Year Filing Deadline for Asylum Claims
The one-year filing deadline for asylum claims is another obstacle to securing asylum in the U.S. based on transgender status. Many transgender immigrants are not open about their sexuality or have not yet come out when they arrive in the U.S., and the one-year bar "does not reflect the psychological reality of coming out." Additionally, transgender immigrants are more likely to live in LBGT communities than immigrant communities with access to immigration resources and therefore may not know that their transgender status may be a basis for asylum, let alone that there is a one-year filing deadline for asylum claims.
Establishing Transgender Identity as Social Group
U.S. asylum claims may require transgender asylum seekers to show that they are a member of a social group with social visibility (Matter of W-G-R-, 26 I&N Dec. 20 (BIA 2014)). This requirement is problematic for sexual minorities like transgender individuals, who are likely to have had to conceal their identities to avoid persecution in their home countries. This "social invisibility" leads to difficulty establishing that the transgender person was known publicly as transgender and persecuted on those grounds. For the same reason, country conditions information on transgender persecution is limited.
Proving Persecution
When persecution occurs at the hands of a private actor, such a family member, it is often outside of the public view, so proving the acts of persecution may be challenging. Where the home country criminalizes transgender status, seeking protection from the state is more difficult and therefore an asylum seeker may struggle to prove denial of state protection.
Immigration Officials' and Judges' Perceptions of Transgender Asylum Seekers
Stereotypes of LGBT individuals influence the decisions of immigration officials and judges. When a transgender asylum seeker fails to conform to social norms and expectations of gender identity and sexuality both within and outside of the LBGT community, officials and judges may dismiss the asylum claim.
A transgender asylum seeker may face additional difficulty before a immigration judge if he or she was married in their home country. Although a transgender asylum seeker may have been forced into marriage to "cure" him or her of their gender identity or married to help conceal their transgender identity, judges may view the fact of marriage as casting doubt on the applicant's gender identity or sexual orientation.
Immigration officials and judges are not only influenced by bias; frequently they are simply unfamiliar with the meaning of transgender, sexual orientation, and gender identity. Under the Obama administration, the Department of Homeland Security created a required training module on gay and transgender issues to educate asylum interviewers on how to properly assess LBGT asylum seekers. However, gaps in knowledge and stereotypes remain and can shape perceptions of the credibility of a transgender asylum seeker's claim.
Commercial Sex Work Bar to Asylum Claims
Having engaged in prostitution within the last 10 years is a ground for inadmissibility. This bar disproportionately affects transgender immigrants, who are more likely than other immigrants to have engaged in sex work because, among other reasons, discrimination prevented them from finding employment. In one study, 11% of transgender respondents reported having participated in sex work at some point in their lives, compared to 1% of all women in the U.S.
Coming Out and Proving Identity
In order to make an asylum claim based on fear of persecution because of transgender status, an individual must reveal their transgender status to an asylum officer. For those who have experienced traumatic persecution and discrimination in their home countries and have grown accustomed to hiding their gender identity, revealing transgender status to a foreign asylum officer can be extremely difficult. Many asylum seekers feel that transgender identity is a personal, private fact not for lawyers and immigration officials to know and may even believe that their transgender identity could endanger their asylum claim.
Openly transgender asylum seekers risk solitary confinement and/or victimization if detained. Asylum seekers compose 40 percent of the mandatorily detained immigrant population, and transgender detainees are at a significantly greater risk of physical and sexual violence at the hands of guards and other inmates. Transgender detainees are often placed in solitary confinement, otherwise considered a punitive measure, to protect them from such violence. Additionally, because transgender individuals in the U.S. face significant discrimination and violence in society in general, coming out as transgender in order to seek asylum may pose great risks, even if the asylum seeker is not detained. Those who identify as transgender are 28% more likely to experience physical violence than gender-normative individuals.
In addition, part of an asylum application based on transgender status is persuading the judge that the applicant is transgender. Strong asylum applications for transgender individuals require that the individual's affidavit including detailed information about the applicant's coming out experience, deeply personal information. Revealing this information and proving one's sexual identity to a judge might be a very traumatic experience for a transgender asylum seeker, who may be unwilling to undergo it.
The One-Year Filing Deadline for Asylum Claims
The one-year filing deadline for asylum claims is another obstacle to securing asylum in the U.S. based on transgender status. Many transgender immigrants are not open about their sexuality or have not yet come out when they arrive in the U.S., and the one-year bar "does not reflect the psychological reality of coming out." Additionally, transgender immigrants are more likely to live in LBGT communities than immigrant communities with access to immigration resources and therefore may not know that their transgender status may be a basis for asylum, let alone that there is a one-year filing deadline for asylum claims.
Establishing Transgender Identity as Social Group
U.S. asylum claims may require transgender asylum seekers to show that they are a member of a social group with social visibility (Matter of W-G-R-, 26 I&N Dec. 20 (BIA 2014)). This requirement is problematic for sexual minorities like transgender individuals, who are likely to have had to conceal their identities to avoid persecution in their home countries. This "social invisibility" leads to difficulty establishing that the transgender person was known publicly as transgender and persecuted on those grounds. For the same reason, country conditions information on transgender persecution is limited.
Proving Persecution
When persecution occurs at the hands of a private actor, such a family member, it is often outside of the public view, so proving the acts of persecution may be challenging. Where the home country criminalizes transgender status, seeking protection from the state is more difficult and therefore an asylum seeker may struggle to prove denial of state protection.
Immigration Officials' and Judges' Perceptions of Transgender Asylum Seekers
Stereotypes of LGBT individuals influence the decisions of immigration officials and judges. When a transgender asylum seeker fails to conform to social norms and expectations of gender identity and sexuality both within and outside of the LBGT community, officials and judges may dismiss the asylum claim.
A transgender asylum seeker may face additional difficulty before a immigration judge if he or she was married in their home country. Although a transgender asylum seeker may have been forced into marriage to "cure" him or her of their gender identity or married to help conceal their transgender identity, judges may view the fact of marriage as casting doubt on the applicant's gender identity or sexual orientation.
Immigration officials and judges are not only influenced by bias; frequently they are simply unfamiliar with the meaning of transgender, sexual orientation, and gender identity. Under the Obama administration, the Department of Homeland Security created a required training module on gay and transgender issues to educate asylum interviewers on how to properly assess LBGT asylum seekers. However, gaps in knowledge and stereotypes remain and can shape perceptions of the credibility of a transgender asylum seeker's claim.
Commercial Sex Work Bar to Asylum Claims
Having engaged in prostitution within the last 10 years is a ground for inadmissibility. This bar disproportionately affects transgender immigrants, who are more likely than other immigrants to have engaged in sex work because, among other reasons, discrimination prevented them from finding employment. In one study, 11% of transgender respondents reported having participated in sex work at some point in their lives, compared to 1% of all women in the U.S.