This article is written by Kratika Vyas, student of Dr. Ram Manohar Lohiya National Law University, Lucknow and Sathyajith M.S., student of University Law College, Bangalore University.

“Gender inequities exacerbate outbreaks, and responses that do not incorporate gender analysis exacerbate inequities.”  – Julia Smith  

In times of global health emergency, gender inclusion and upliftment has always emerged as a bleak possibility due to the farrago of fact and prevalent social setting. This gives rise to the pressing need to study the socio-economic problems through a humanitarian-inclusion lens. The United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA) has identified the increased risk of preventable disease in humanitarian settings as one of its top challenges for 2020, noting that disease outbreaks are intensifying humanitarian needs in some areas. Moreover, the Covid-19 pandemic has shown that the inherent inequities have been embedded in social services, government programmes, policy-making and access to resources, which open up the opportunity for the governments across the world to undertake efforts through open policies for a more inclusive recovery from the pandemic. 

While the pandemic has had an enormous impact on the society, it has disproportionately impacted the refugees and asylum seekers who face social, economic, and political challenges coupled with fear and uncertainty owing to misinformation. It is estimated that there are 79.5 million refugees, internally displaced persons (IDPs), and stateless persons. Among these, there are vulnerable who are placed at the lowest strata which include the LGBTQI+, women and girl children. It is apposite to note that LGBTQI+ people are less able to protect themselves through physical distancing and safe hygiene practices, increasing their exposure to contagion.

Cataclysmic impact on female refugees

At the outset, Covid-19 outbreak has exacerbated the physical, fiscal and social problems of the refugees, especially females. Female refugees get to grips with unique and more difficult challenges- running from health, lack of clean water, sanitation facilities and shelter; to the potential heightened effects on humanitarian settings. It is pertinent to note that though men, elderly and persons having weak immune systems are more prone to fatality risk of COVID-19, the eminent role of women and girls as caregivers (nearly 75 per cent of the health-care workforce) unmask them at greater risk with worst-hit consequences of this infectious disease. 

With over 50 per cent of the refugees being women, they are at a heightened disadvantage due to the fact that they are displaced due to various social disturbances, conflicts, and human rights violations. The problem is further compounded since over 90 per cent of them are displaced either in low-income countries or developing countries, which have weak WASH infrastructure aggravating the problem of accessing health-care facilities. 

Moreover, with lockdowns and restrictions on movement in place, female refugees are now particularly exposed to increased gender-based violence (GBV) due to unequal power dynamics. GBV against women is omnipresent where human roles come into play. Right to life is a founding stone for any other related human rights inclusive of the right to live with dignity, health, personal liberty and security, right to freedom of movement, right to equality and equal protection within the family, and more importantly right to life free from GBV. Estimates suggest that over one-third of women and girls across the world experience some form of GBV. Women and girls who live in areas of armed conflict, who are largely displaced persons are said to be at a heightened risk of experiencing GBV.

For instance, in conflict-affected areas of South Sudan, around  65 per cent of women and girls have experienced physical or sexual violence, which is twice more than the global rate. Similarly, in conflict-torn Libya, it has been reported that a large number of female refugees were either being raped by smugglers or traffickers or witnessing evidence of others being abused. Figures (as on 28th April) suggest that cases of GBV will augment up to 31 million if the lockdown continues for at least 6 months. For every extension of the lockdown by three months, we may witness the increment of nigh 15 million cases of GBV. Thus, based on the shreds of facts and realities pertaining to the female refugees, there is a telling need for the government and the concerning organisations to have an inclusion lens to eradicate the rigorous sanctions which exist due to unequal power dynamics.

Chequered impact of COVID-19 on LGBTQ+ refugees

The COVID-19 pandemic is not the world’s first health emergency for which organisations have been called upon to alleviate the sufferings of the vulnerable. However, data evince that there is a lack of academic study and empirical research from a gendered perspective, especially regarding the implications of health emergencies on the LGBTQ+ community. The recorded data of past health emergencies suggest that less than one per cent of research papers on the disease adopted a gendered perspective analysis. Lack of academic study fails to initiate a public discourse which highlights the sufferings of the LGBTQ+, ergo, lack of policy-making in this regard. 

Far from initiating public policies for the welfare of the LGBTQ+ community, some countries, majorly underdeveloped, have criminalised it. There are discriminatory laws in over 70 countries which criminalise LGBTI risking them to arrest, prosecution, imprisonment, and even death penalty in a few countries. Coincidentally, many such countries host a large number of refugees as well. For instance, Kenya, being a low developing nation, criminalizes the same-sex relationship. Moreover, Kenya hosts one of the world’s largest refugee camps, Kakuma Refugee Camp, nestled in the northwestern part of Kenya. As of March 2020, this densely populated camp hosts a whopping figure over 190,000 refugees. This gives the greater idea of telling impact on their deplorable conditions and leaves a question unanswered, ‘whether the policy-making during this pandemic has an inclusive lens to address the unignored exigent demands of ignored masses of the LGBTQ+ community? 

From a legal perspective, the laws which criminalise LGBTQ+ fails to adhere to various international conventions and agreements. This was reiterated in 1994, where the UNHRC in the case of Toonen vs. Australia, affirmed that such laws violate various enumerated rights such as the right to privacy and non-discrimination. It also considered it to be in breach of obligations of States under the International Covenant on Civil and Political Rights since it violates Article 4, Article 6 and Article 10 which guarantees all persons inherent human life and dignity. Article 4 specifically deals with the obligations that States must adhere to during public emergencies. It includes non-discrimination solely on the ground of race, colour, sex, language, religion or social origin. Despite this, the concept of LGBTQ+ relationship is still frowned upon in many countries by tooting the horns of their hidebound culture as a consequence of prevalent archaic and puritanical laws. For instance, Peru and Panama, the countries which host a huge number of asylum seekers from Venezuela imposed gender-based restrictions during the lockdown period to the detriment of the LGBTQ+ community.

The painstaking journey of these refugees (who have already been deplored in their home country) is exacerbated by using the wording in homosexuality laws such as “against the order of nature”, “crimes against morality”, “indecent” or “debauchery”, which remained a topic of great debate due to its vagueness. It is significant to discuss the doctrine of void for vagueness, which states a law is invalid because it is not sufficiently clear. This gives a conspicuous view that such laws are undefined, ergo, debunk human rights and the inherent human dignity of the LGBTQ+ community. This makes the law invalid. Regardless of this fact, these barbaric laws exist, and flouting of any such homosexuality-related law results in death penalty. Noticeably, countries like Iran, Sudan, Yemen, Saudi Arabia, Pakistan, Nigeria which host world’s major refugee chunks, criminalizes consensual same-sex conduct by legally prescribing the punishment of death penalty (which can even go up to death by stoning). Such laws make the LGBTQ+ refugees more susceptible to the physical abuse, violence, and even face discrimination in health-care facilities during this testing time of emergency of COVID-19, thereby, bringing them under the penumbra of fear and existence of living. 

The shabby plight of this community is further aggravated by the various impediments like rigorous border regulations, operational and logistic constraints on immigration services across the globe. Since governments across the globe have now redeployed their resources for COVID-19 related duties, immigration services have taken a back seat and are not processing any registration claims. This has deprived asylum seekers and stateless persons from accessing healthcare services without any formal identification document, ergo, adding to their list of woes.   

Adding to the gravity of the issue of the refugees, the global toxic narrative engendered by the ironically powerful but prudish voices across the world look at them with disparage. Several factors magnify their political, socio-economic problems coupled with the concrete impact on their existence. Although, refugees are ubiquitously portrayed and negatively labelled as “foreigners”; the situation worsens for LGBTQ+ refugees due to the virulent narrative extensively present across the world. This further, brands them and creates a subset within foreigners as “Others”.

The social exclusion of the LGBTQ+ refugees is compounded by the social stigma which is prevalent in many countries. These social stigmas blame the community for several catastrophes by ascribing unfounded reasons such as considering LGBTQ+ to be ‘unnatural’ or ‘against nature’ for which nature takes ‘revenge’ through a catastrophe. The same has been stated by some religious leaders and political office bearers for the present COVID-19 pandemic as well. With such xenophobic narratives gaining traction, verbal abuses, use of defamatory language and misinformation against the LGBTQ+ refugees is bound to increase considering the fact that many countries have discriminatory laws which are inherently homophobic. 

Reports also suggest that LGBTQ+ members have an increased risk of getting severely infected by COVID-19 since social distancing in densely populated refugee camps is hardly a reality conjoined with the fact that LGBTQ+ members also smoke tobacco at much higher rates when compared to cisgender peers. Additionally, many LGBTQ+  members having a history of other illnesses such as HIV and cancer makes them more vulnerable to COVID-19 and death due to comorbidity conditions. This is aggravated by the fact that LGBTQ+ members may not be able to access the healthcare facilities and be deprioritised for treatment due to the increased workload on the healthcare systems across the globe. 

Thus, this brings to light the various aggravated socio-economic challenges that the LGBTQ+ community faces due to the pandemic. There is an exigent need to address the two major types of problems which exist- the perceived and the real. This should be tackled by the States at a war footing by allowing these refugees to breathe some fresh air, who are otherwise neither guaranteed security in their home country, nor in transit routes, or even in the host country where they seek asylum.

Suggestive measures

Existence of a plethora of problems of the LBGTQ+ refugees due to the prudish mindset of the society led to a furore among this community. When the current wave is of fighting the COVID-19 for others, this community is combatting for its recognition and then protection during this testing time of the pandemic. As per the facts stated above, this refugee community lives in a densely populated area. Thus, social distancing seems to be a distant reality and it is rightly said by Kieren Barnes (Mercy Corps’ Syria County Director), “Social distance is a fantasy in a camp, but if we’re going to prevent a massive outbreak, we need to make it a reality.” In order to make it a reality, it is important to shed light on the following plausible progressive measures:

1. Tackle misinformation- This includes systematic debunking of social stigmas and fake news, condemnation of hate speech, and the creation of a robust platform for genuine information sharing. 
2. Providing a conducive atmosphere- By having separate LGBTQ+ refugee camps, in the short-run, to eradicate hostile ambience within the existing refugee camps. Governments and NGOs should ensure food security, nutrition, sanitation etc. 
3. Effective mechanism to tackle gender-based violence- Installing phone booths and mobile hotlines within a radius of 1-2 km of the refugee camps to have equitable access to communication services. Moreover, effective training of healthcare workers to handle GBV cases in a compassionate and non-judgemental way. 
4. Provide emergency healthcare facilities to LGBTQ+ asylum seekers without any documentation requirements to set about the imminent problems faced during COVID-19 pandemic.
5. Adequate representation- Ensure participation of the LGBTQ+ members in decision making in humanitarian organizations and governments to have an inclusion lens.

As we approach a path to recovery, there is a need to recalibrate the idea behind policy-making across various domestic jurisdictions. This would include initiating reforms concerning laws which are discriminatory solely based on gender identity. For eg., collection of sex-disaggregated data, gender-mainstreaming of budgeting etc. This is necessary to mitigate the displacement of LGBTQ+ persons due to state-sanctioned prosecution under barbaric criminal laws. 

Major takeaways

To anticipate and mitigate the challenges faced by the LGBTQ+ refugees during COVID-19,  we need to consider this pandemic as a prime time to shed away our uncalled-for ruthlessness towards them and establish a humanitarian inclusion lens. However, there are several questions that remain unanswered. Presently, what needs to be asked is whether the thick-skinned governments across the world, who went astray from humanitarian principles, are prepared to introspect and bring about a new normal? How many governments are prepared to put people’s aspirations, needs and rights at the highest pedestal? How many international humanitarian organisations are there to counter the negative and xenophobic sentiments that are on the rise about LGBTQ+ refugees? Who puts the efforts for the solutions during COVID-19 that must be framed in the context of global justice, human rights and equality? Who is responsible for such deplorable conditions of this particular chunk of refugees? But the poignant reality of every LGBTQ+ outcry is, ‘Who would listen to me?- I am a transgender. Who cares?!’

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