Legal Complications for LGBTQ+ Refugees in Ukraine: A Critical Analysis
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Legal Complications for LGBTQ+ Refugees in Ukraine: A Critical Analysis

As the Ukrainian military and its citizens defiantly fight back against Russian forces, LGBTQ+ citizens face a unique fight of their own, the fight to safely be themselves. Last month, the U.S. Ambassador to the United Nations authored a disturbing letter, warning of serious human rights violations if Russia successfully occupies Ukraine. Ambassador Bathsheba Nell Crocker warns that credible information has been ascertained that indicates Russian military authorities have in their possession lists of vulnerable populations “to be killed or sent to camps following a military occupation.” On these lists, of course, are LGBTQ+ Ukrainian citizens. It is now more important than ever to protect LGBTQ+ refugees from the dangers of a Russian occupation. The problem is, however, that many European countries are not safe for the community.

Current Refugee Policies

According to the Convention and Protocol Relating to the Status of Refugees, from the United Nations Refugee Agency, the governing body on international refugee policy, “[c]ontracting states shall apply the provisions of this Convention to refugees without discrimination as to race, religion, or country of origin.” LGBTQ+ individuals are explicitly excluded from discrimination protections. This international rift led private aid networks, such as Rainbow Refugee, and private citizens, to close the gap. Viktoria Radvanyi, Communications Director for Budapest Pride, is one such citizen. Together with her girlfriend, Viktoria drove to the Hungary/Ukraine border to rescue four Ukrainian LGBTQ+ refugees to provide them with safe housing, food, and mental health resources back in Budapest. Yet, Viktoria is not the only one. “LGBTQ+ people in her country have been giving anything they can to help——a spare room, a couch.”

While this demonstrates the resilience and strength of the community, it also highlights the unfortunate reality international LGBTQ+ refugees face as they flee Ukraine. While the United Nations Refugee Agency may claim to see value in the protection of LGBTQ+ refugees, there remains a serious lack of explicit protections. According to the UN Refugee Agency, “[t]he challenge in placement [of LGBTQ+ refugees] is to ensure that there is an appropriate match between the needs of resettled refugees and the resources and needs of the receiving community. Transgender and intersex refugees often need medical treatment that is not available in all locations.”

Further, minimal efforts to advocate for and protect LGBTQ+ refugees have been made. In 2010, the United Nations began round-table discussions on how to better serve LGBTQ+ refugees. However, this remains the great extent of their work. While many operational reports have been released pertaining to LGBTQ+ advocacy, the 1951 Convention Relating to the Status of Refugees remains the same. Meaning, the LGBTQ+ community remains excluded from protection, thus leading to problematic treatment in various European countries.

Problematic European Provisions

There is no situation more demonstrative of this than Poland. Late to join the Convention, Poland was notably brought before the European Court of Human Rights for violating several Articles of the European Convention on Human Rights. This is especially problematic given that LGBTQ+ people “are likely to face violence, denial of basic services, arbitrary detention and abuse by security forces, among other kinds of discrimination.”

Shining a light on Poland’s problematic LGBTQ+ provisions become especially important given the role the country has played in the Ukrainian refugee crisis. In Poland, “gay couples can’t marry, form civil unions or adopt children.” Sadly, a 2019 poll of Polish citizens found that almost a quarter believed that “homosexuality must not be tolerated.” Disturbingly enough, Poland’s self-instituted “LGBT free zones” are found across nearly a third of the country. While largely unenforceable, these ‘zones’ highlight the dangers faced by LGBTQ+ citizens and refugees entering the country.

Behaviors and practices like these are not unique to Poland, making it ever more difficult for Ukrainian refugees to find a safe and stable environment to relocate. With this reality in mind, if LGBTQ+ individuals do not leave Ukraine, they face detrimental and dangerous persecution by Russian forces. One transgender Ukrainian singer, Zi Faamelu, testifies to the difficulty Ukrainian refugees face. “It is a very bleak situation for trans people in Ukraine. But in Russia, it’s even worse.”

Russia has systematically targeted the LGBTQ+ community over the last two decades. In 2013, Russia passed the “gay propaganda” law, making all LGBTQ+ advocacy illegal. That same year, the Kremlin turned a blind eye when officials in the Chechen Republic kidnapped, tortured, and killed men suspected of having sex with other men within Russian Federation borders.

Recommendations and Conclusions

First, there must be an amendment to the 1951 Convention to include LGBTQ+ refugees as a protected class. This would alleviate the responsibility aid networks and private citizens face to protect their community members. While the efforts are admirable, this responsibility should not be placed on private operations such as these. Instead, the United Nations should drive the predominate solution. A change in the Convention would reduce the discriminatory practices LGBTQ+ refugees face as they migrate to new European countries.

The UN Refugee agency itself recommends the adoption of Articles 29 and 10 of the Yogykarta Principles (a series of recommendations regarding the protection of LGBTQIA+ people) as international law.

International human rights law affirms that all persons, regardless of their sexual orientation or gender identity, are entitled to full enjoyment of all human rights and the application of existing human rights entitlements should take account of the specific situations and experiences of people of diverse sexual orientations and gender identities.

These articles would give a legal framework to stop countries from discriminating against their LGBTQIA+ citizens.

Finally, individual countries should help fund and support LGBTQ+ refugee advocacy groups. In the United States, the Global Equality Fund provides aid to such groups. According to the Secretary of State, Anthony Blinken, “[t]he Global Equality Fund provides emergency assistance to human rights defenders and human rights programming support to grassroots LGBTQI+ organizations to catalyze positive change and draws its strength from the support and partnership of an international coalition of like-minded governments, businesses, and foundations.” Given the success of this funding model, it should serve as the basis for international replication.

 

Gwenyth Ortman and Rebekah Malkin are both students at the University of Pittsburgh School of Law.

 

Suggested citation: Gwenyth Ortman and Rebekah Malkin, Legal Complications for LGBTQ+ Refugees in Ukraine: A Critical Analysis, JURIST – Student Commentary, March 30, 2022, https://www.jurist.org/commentary/2022/03/ortman-malkin-legal-complications-lgbtq+-refugees-ukraine/.


This article was prepared for publication by Viraj Aditya, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org


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