Transgender asylum seekers

Transgender asylum seekers are transgender people seeking refuge in another country due to stigmatization or persecution in their home countries.^[1] Transgender people oftentimes flee due to dangerous living conditions and discrimination.^[2]

Because of their gender non-conformity, transgender asylum seekers face elevated risks to their mental and physical health. Transgender asylum seekers encounter greater challenges in comparison to cisgender asylum seekers those whose gender identity is the same as their sex assigned at birth. The challenges transgender asylum seekers face include higher risks of physical and sexual assault, torture, "conversion therapy" practices, and forced isolation.^[1] As a result, transgender people face challenges in the asylum process not experienced by others. ^[3]

As defined in the 1951 United Nations Convention Relating to the Status of Refugees, a refugee or asylum seeker is any "person owing to a well-founded fear of being persecuted for reasons of race, religion ... [or] membership [to] a particular social group [that cannot] avail himself of the protection of that country" which does not include discrimination on the basis of sex. ^[4] In the US, gender-based discrimination laws are based on the experiences of cisgender women, therefore, transgender migrants are forced to undergo rigid asylum processes that exclude their identities. ^[5] Additionally, their experiences are not encompassed because the "refugee experience" has been seen through Eurocentric terms due to standardized term and definition of the refugee following World War 2 and it is also a broad category.^[6]

For example, asylum claims made by transgender refugees are considered under the basis of persecution because of their involvement in a particular social group in the US.^[7] This requirement means that membership to a social group is not enough in order to claim asylum, but that refugees must prove that they have been persecuted because of their social group's standing in order to be granted refuge. Transgender asylum seekers are required to provide "proof of gender transition" which reproduces harmful ideas of gender binaries.^[8]

The growing restrictive asylum policies and processes include increased periods of mandatory detention and extended processing times.^[9] Due to longer processing times, transgender migrants are forced to remain in detention centers while they wait and experience sexual assault due to facilities separated by gender binaries.^[10] As a result, transgender asylum seekers are required to navigate complex legal procedures and experience trauma throughout the process.^[11]

These processes, therefore, result in high levels of mental and physical distress as refugees navigate the asylum process.^[12]

Transgender persons may have experienced "severe persecution" in the countries they have fled, even where anti-transgender laws do not exist.^{[13]: 8–9} Regardless of anti-transgender laws, the strict gender norms that exist in many countries, associating masculinity with men and femininity with women, perpetuate the violence faced by transgender refugees. Because transgender people often move away from identifying with their sex assigned at birth, or feel as if their gender is fluid, many transgender refugees face persecution, discrimination, and transphobia in their home countries. The stigmatization and violence faced by this group of refugees can take place in a range of places, including within the home, the workplace, with health care providers, or simply from the general population.^[1]

Research shows that transgender individuals experience greater socioeconomic disadvantages, more exposure to traumatic events, and more stressors than cisgender individuals within their home countries. These individuals also often face multiple forms of stigmatization related to their employment, health care access, housing, etc.^[14] A document review of asylum applications of Mexican transgender refugees revealed several common themes, focusing on stressors experienced, health consequences of these stressors, and services accessed by transgender asylum seekers. In their place of origin, Mexico, each asylum seeker faced some levels of verbal, physical, and sexual assault, an unstable environment, fear for their safety and security, and economic insecurity.^[12]

Transgender asylum seekers seek refugee from many parts of the world.^[15]

The report states that "[w]hile living in Mexico ... verbal assaults often started at a very early age and continued until they escalated to physical assault."^[12] Most asylum seekers within the study reported numerous physical assaults by peers, family members, and authority figures, and many reported sexual assaults that started in their early teens.

For example, one asylum seeker explained how "[In Mexico] [m]y father always rejected me throughout my childhood . . . He beat me a lot. He beat me with his hands, kicked me a lot, and often [used] whatever he could find around him to beat me. I lived in fear for my life around my father... because he wanted to have sons that acted like men not women."^[12] Focusing on the violence faced because of gender norms, this asylum seeker describes violence within her own household. While living in Mexico, many asylum seekers also reported being kicked out of their homes or fleeing because of violent family members, and many reported living on the streets or with anyone who would take them in. In addition, asylum seekers reported moving multiple times to escape harassment, discrimination, and abuse or to find a more LGBT-inclusive environment, creating a lot of environmental instability.

A 2020 public health review determined that transgender women seeking asylum from Mexico were fleeing a situation of "extreme vulnerability."^[16]: 6 Finally, each asylum seeker reported leaving Mexico because of extreme fear of violence and death since many of them had friends who, because of their identities, were beaten, raped, or even murdered.^[12] This report shows the high levels of mental and physical stressors of transgender asylum seekers within their home countries.

In 2017, Amnesty International released a report on LGBTI people seeking asylum in Mexico, describing El Salvador, Guatemala, and Honduras as being "no safe place" for transgender people.^[17] The countries of El Salvador, Guatemala, and Honduras form part of the Northern Triangle which is a region in Latin America that is experiences high rates of violence, unemployment, and low levels of economic opportunities due to prolonged instability fueled by US intervention.^[18] Alongside the conditions of violence and repression Central American societies produce, transgender individuals face discrimination in employment. [1] Transgender asylum seekers encounter higher rates of hate crimes and homophobia in their countries of origin in Central America ^[19] due to the machismo and misogyny within Central American societies.^[20] For example, maras in Central America have been found to perpetrate hate crimes against transgender migrants by cutting of their hair as it symbolizes transition ^[21] in order to strip them from their dignity.^[22] As such, Central American transgender migrants can only attain safety from these forces by becoming asylum seekers or migrating from their home countries.^[23]

Violence against transgender individuals are not seen as valid claims and perpetrators act with impunity because state forces and authorities do not enforce laws protecting transgender individuals.^[24] Most importantly, Central American migrants cross multiple borders from their home countries prior to arriving in Mexico.^[25] For instance, at the Mexico/Guatemala Border there is only one migrant shelter that serves LGBT+ migrants, known as La 72.^[26] Therefore, Central American migrants undergo different levels of exploitation in comparison to asylum seekers from Mexico who experience different economic conditions.^[27] Transgender Central American migrants are vulnerable to sexual exploitation as well due to their conditions of being undocumented in Central American countries and vulnerable.^[28] In Mexico, transgender migrant women are targeted for human and sex trafficking in popular destinations for sex tourism, specifically Guadalajara and Puerto Vallarta in Jalisco. Asylum seekers and migrants, therefore, will be subject to kidnappings and extortion from organized crime. ^[29] Due to the 1996 Immigration Reform and Control Act, immigration became criminalized in order to surveil asylum seekers and migrants in order to control immigration coming into the U.S.

On their journey North, police and authorities will target transgender migrants. Maras have forced transgender migrants to travel with drugs, hide weapons, and traffick drugs.^[30] As such, authorities will surveil and criminalize transgender migrants as they make their journey across Mexico.^[31] Following attacks or abuses on the migrant trail, migrants can be denied access to health care and medical attention from healthcare providers and hospitals in Mexico and Central America due to homophobia.^[32]

Most transgender asylum seekers flee from Central American countries.^[33] On their journey North, transgender asylum seekers also encounter maras (gangs) who extort, rape, hide weapons, and force them to sell drugs in transit due to the heteronormative gang structure present in many transnational organizations. ^[34]

In most cases, transgender asylum seekers are at greater risk than others while seeking asylum. The restrictive asylum policies and processes, increased periods of mandatory detention, and extended processing times, create unsafe, unstable environments for transgender persons. Although the claim for asylum due to discrimination faced because of gender identity can constitute viable grounds for asylum, "proving" one's identity can be particularly challenging for transgender asylum seekers. Adjudicators, those who approve asylum claims, often rely on outdated, medicalized notions of what it means to be transgender, and usually require transgender asylum seekers to desire, seek out, or obtain, some sort of medical procedure before approval.^[1] Additionally, to claim asylum transgender refugees must produce proof of persecution, which often requires them to retell experiences of trauma through categories such as gender reassignment, sex assigned at birth, their dead name, hormone therapy, etc. For asylum seekers, this requirement can add additional stress as these definitions might not be applicable to multiple cultures and as they are required to retell their experiences through Westernized vocabulary.^[1]

Also, because they are required to retell traumatic stories or discuss the abuses they experienced within their home countries, transgender persons face high levels of emotional and physical distress, and most asylum seekers report feelings of sadness, hopelessness, depression, and anxiety while seeking asylum.^[35] In the study focused on document review of asylum applications of Mexican transgender refugees, professionals diagnosed 100% of the asylum seekers with PTSD and diagnosed 93% with depression.^[12] Over half of the asylum seekers reported suicidal tendencies and several made attempts as suicide, to them, seemed like the only way to escape the verbal, physical, and sexual abuse they experienced. A report based on interviews from 28 transgender women from El Salvador, Guatemala, Honduras and Mexico, highlighted that all the women interviewed had survived physical assault, verbal violence, and denial of routine treatments while in detention.^[1] Transgender refugees in particular suffer from inadequate access to hormone therapy while in the asylum process, and often suffer from physical abuse within detention.^[36]

Transgender people may also be at risk while detained in the countries in which they seek asylum. NGOs such as Human Rights Watch Transgender Europe, and the National Center for Transgender Equality have reported cases of rape and abuse of transgender people in UK, US, Norwegian, and Greek facilities for asylum seekers.^[37] In the United States, Immigration and Customs Enforcement places transgender asylum seekers in a "transgender pod" where there is a lack of medical and mental health services.^[38][39] Additionally, some countries rely on a gender binary in their placement of transgender refugees during the detention process. Because of this reliance, some transgender refugees are placed in detention centers based on their sex assigned at birth rather than their gender identity. This placement adds another sense of mental distress, trauma, and physical abuse for transgender refugees.

Globally, asylum laws leave LGBT refugee detainees "particularly susceptible to heightened levels of physical and mental abuse."^[13]: 2

Mexico has a highly militarized border in response to the 1996 Immigration Reform and Control Act which criminalized migration by increasing surveillance at points of entry and immigration checkpoints throughout Mexico.^[40] Following pressure from the U.S., Mexico implemented Plan Frontera Sur and the Prevention through Deterrence Policies which pushed asylum seekers and migrants to take more dangerous migration routes across Sonoran desert terrains in Mexico to discourage migration from Central America.^[41]

Asylum seekers seeking refuge in the U.S. must remain in immigration detention centers once they file for asylum and throughout the duration of their case.^[42] In Immigration Customs Enforcement (ICE) detention, transgender migrants are oftentimes placed in solitary confinement due to gender binaries in facilities.[2] ICE Agents have also been reported for being responsible for perpetrating acts of sexual assault and harassment rather than other detainees.

Oftentimes, HRT is denied by Immigration Customs Enforcement (ICE) detention facilities and ICE does not maintain accurate records of who receives treatment.^[43] For example, transgender refugees may only receive Hormone Replacement Therapy (HRT) if they were already undergoing such treatments before being detained.^[13]: 37 This lack of access may make them more visible during transition and hence more readily targeted for transphobic abuse.^[13]: 17For instance, the Ninth Circuit in the 2022 Transgender Law Center vs. Immigration Customs Enforcements revealed that ICE redacted and withheld information about the death of a migrant in custody in violation of the Freedom of Information Act.^[44] The denial of medical treatment, including hormone treatments and medical treatments to combat HIV/AIDS, places transgender people at higher risks of mental and physical distress during the process.^[45]

In ICE Detention Centers, there is a lack of access to gender affirming care and facilities.^[43] For instance, transgender women who are asylum seekers are oftentimes placed with cisgender men. In consequence, transgender women have experienced higher rates of rape, assault, and harassment from detainees and detention center staff.^[43]

When denied asylum, there have been reports of adverse outcomes for transgender persons.^[46][47][48] According to the ASPIDH Rainbow Trans Association, a transgender woman seeking asylum in the United States was killed in El Salvador weeks after her request was denied.^[46] One asylum seeker explains how "[they are] afraid to return to Mexico because the society is very homophobic. There is a lot of discrimination and abuse of transgender people in Mexico. The police do nothing to protect us, and often kill transgender people like me. There is no safe place for me to live anywhere in Mexico."^[12] The violence and discrimination faced by transgender persons create these adverse, dangerous, outcomes if they are denied asylum and required to return to their home countries.

Transgender persons may also face difficulties after being granted asylum because of their gender identity.^[49] The Williams Institute reported in 2022 that transgender asylum seekers may be disproportionately harmed by detention practices and face sustained mental health challenges as a result.^[50] Additionally, transphobic people, and transphobia exist within every part of the world, still leaving asylum seekers vulnerable to violence or emotional distress even if granted asylum.

Since 2000, the United States has recognized transgender asylum seekers as a social group that deserves protection on the basis of gender identity.^[51] The lack of employment opportunities in their home countries, as a result of their transgender identity, sometimes means that transgender refugees were forced into prostitution as a means of survival. Despite the country's recognition of transgender asylum seekers, transgender refugees are sometimes disqualified under the United States' criminalization of prostitution, even if they are not engaged in criminal activity.^{[52]: 271–2}

The United States' requirement that transgender refugees prove their identity also disadvantages them in the refugee process as many refugees are unable to begin transitioning until arriving in the United States.^{[53][54]: 163} Transgender asylum seekers are not given a voice or agency during the asylum process. ^[55] For instance, the Biden-Harris Administration created stricter requirements for asylum proceedings which adversely impacted transgender migrants from Central and South America in 2021.^[56] The administration re-implemented President Donald J. Trump's orders, specifically Migrant Protection Protocols known as "Remain in Mexico" policy which required migrants and asylum seekers from Latin America to remain in Mexico while their asylum proceedings were being processed, specifically asylum seekers who were not Mexican nationals in 2019.^[57] Asylum seekers had their "pending" cases cancelled shortly after Trump's policy was implemented.^[58] The "Remain in Mexico" policy adversely impacted transgender migrants and asylum seekers in Mexico as they were required to remain in encampments following their "credible fear" interview ^[59] which occurs prior to meeting an immigration judge.[3] Transgender migrants are asked to "prove" their transition, gender identity, and sexuality during this interview.^[60] Throughout the COVID-19 Pandemic, many hearings were cancelled or rescheduled causing migrants to stay in Mexico for extended time periods which impacted 850,000 immigration cases from being presented in front of a judge.^[61]

Some U.S. political activists have sought to improve conditions for transgender asylum seekers.^[62] In January of 2025, President Donald J. Trump issued a mandate into law which specified that the federal government only recognizes two genders either male or female. ^[63] As a result, documents utilized during asylum legal proceedings can no longer protect transgender people from discrimination. ^[64]

In the US, there are many organizations available to support transgender individuals following the experience of gender-based discrimination in their home countries. Many provide free legal services and consultations through their website.

In the Bay Area, East Bay Sanctuary Covenant (EBSC) provides legal services for low-income immigrants who have fled gender-based discrimination and violence in their home countries to support them with the asylum process.^[65] EBSC has historically taken on refugee cases from individuals with backgrounds of persecution in their home countries, such as LGBTQIA+, Indigenous, undergone domestic violence, and who have traveled unaccompanied to the U.S.^[66] EBSC supports immigrants with support services geared towards affirmative asylum, DACA, green cards, work permits, and the naturalization process in the US.^[67]

Additionally, CARECEN-SF (Central American Resource Center) provides legal consultations and services for asylum applications from their team of paralegals and attorneys which is located in San Francisco.^[68] Moreover, CARECEN is also located in Los Angeles and San Bernardino which provides free legal consultations, screenings, and services for a variety of immigration cases.^[69] For example, Southern California's CARECEN Offices offer support for survivors of domestic violence and abuse.^[70]

In Los Angeles, the Los Angeles LGBT Center also provides support with finding stable housing and resources for individuals who have experienced detention and incarceration. Most importantly, the Los Angeles LGBT Center provides legal services for LGBT individuals fleeing from their home countries due to persecution and violence.^[71] The LGBT Center supports in preparing asylum declarations and providing defense for individuals held in immigration detention centers among other services.^[72]

The Transgender Law Center is a non-profit organization dedicated to supporting transgender individuals with their immigration cases. The Transgender Law Center also provides legal support.^[73] The Center leads the Border Butterflies Project Initiative alongside other organization to address the demand for asylum proceedings and legal defense at the U.S./Mexico Border.^[74]

• Asylum seeker
• Transgender rights

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