Asylum Based on Gender Identity

Since 2000, the United States has recognized and accepted asylum claims based upon gender identity. In this article, we will focus on asylum for transgender individuals, its historical precedent, and its overall importance in the immigration system. Claimants for asylum who are transgender fall under the category of persons who fear persecution due to membership in a particular social group.

Overview

Transgender individuals face unique harassment, and violence because of their gender identity. In many countries, being transgender or “cross-dressing” is illegal or is frequently categorized as homosexual action in countries where homosexuality is criminalized. Transgender people face rejection from their families, hostility at school and church, and indifference, at best, from the police.  Housing and employment discrimination in nations where transgenderism is looked down upon can frequently force transgender individuals into sex work to support themselves. This is an issue that disproportionately affects transgender woman though, who are also affected by broader violence against women.

However, even upon entry to the United States, transgender individuals face heightened risks of physical, sexual, and verbal violence in immigration detention centers. Further, transgender individuals are frequently housed in the wrong gender cells and lack access to adequate healthcare facilities. This makes seeking asylum as a transgender individual particularly challenging, but necessary for many individuals who fear and face persecution in their country of origin.

History

In 2000, the case Hernandez-Montiel v. INS, established that a person assigned male at birth who presented as a woman and faced persecution as a result, had a reasonable fear of persecution due to their membership in a particular social group. This case, in essence, established that transgender individuals could articulate successful asylum claims.

Then, in 2007, the case Morales v. Gonzalez found that a transgender woman who suffered sexual assault in prison met the legal standard for relief under the Convention Against Torture. This Convention was established in 1984 and prohibits the U.S. from returning people to countries where they are more likely than not to be tortured. Although this Convention is not frequently invoked, many asylum cases of transgender people do involve it due to the treatment of transgender individuals across the globe.

Importance

When coming to the U.S, transgender individuals seek safety and freedom from persecution. Since the incorporation of gender identity into asylum claims, claims based on gender identity have been processed and accepted. Benach Collopy has frequently worked to advocate for and help transgender clients with their asylum applications. Our team is dedicated to continuing that work and providing a safer world for our transgender clients. If you need assistance with an application, please contact us at 202-644-8600 or visit our website: www.benachcollopy.com.