The Political Theory of Refuge

In recent years, the political theory of refuge, as in political theory concerning questions of asylum and displacement, has expanded enormously. Within this burgeoning literature, many focus on conditions for entry into the state of asylum or the ethics of admission (Parekh Reference Parekh2013). This emphasis on admission echoes Michael Walzer’s early conceptualization of refugeehood as a forceful moral claim against the usual boundaries of the state. The claim to asylum is therefore a distinctly powerful force: “‘If you don’t take me in,’ they say, ‘I shall be killed, persecuted, brutally oppressed by the rulers of my own country’” (Walzer Reference Walzer1983, 49). The obligation to accept refugees therefore acts as a constraint on the state’s ostensible right to exclude (Song Reference Song2019). This duty to admit refugees is not always taken to be absolute, but even the most stringent defenders of the state’s right to border control generally make exceptions in the case of refugees (Wellman Reference Wellman2019). Two core debates have emerged from this focus on admission: (1) who counts as a refugee? and (2) why do states have obligations to assist the refugees? The first debate considers to whom states have these more stringent obligations, with some focusing on broad criteria such as human rights protection or violations of basic safety (Carens Reference Carens2013; Gerver Reference Gerver2018; Gibney Reference Gibney2004; Miller Reference Miller2016; Reference Miller, Hoesch and Laube2018; Shacknove Reference Shacknove1985; Song Reference Song2019) and others defending the Geneva convention’s emphasis on persecution (Cherem Reference Cherem2016; Price Reference Price2009). The second debate concerns how we should ground state’s obligations to refugees: through duties of rescue (Gibney Reference Gibney2004), duties of legitimacy (Brock Reference Brock2020; Owen Reference Owen2020), or duties of reparation (Souter Reference Souter2014). Importantly, both debates retain a focus on admission in considering who exactly ought to be admitted and for what reason. Of course, admission to an alternative state is important, given the nature of displacement; refugees are those who require assistance elsewhere. Indeed, some argue that this need for admission is precisely what makes refugees distinct from other “necessitous strangers” (Cherem Reference Cherem2016; Walzer Reference Walzer1983, 47). However, Serena Parekh (Reference Parekh2013) argues that the focus on admission precludes us from considering other important normative topics, such as what happens to those who do not qualify for international protection. We expand Parekh’s critique, arguing that this focus also precludes consideration of what happens to refugees after entry to their new state.

Where political theorists do discuss the obligations of states to refugees beyond admission, they usually adopt a blanket approach, treating all refugees as entitled to similar remedies. David Miller (Reference Miller2016) argues that refugees require the protection of their basic human rights, and Michael Dummett (Reference Dummett2001) similarly views refugees as entitled to a minimally decent human life. Both accounts include the possibility of differentiated protection for specific sets of refugees: living a minimally decent human life presumably includes freedom from homophobic persecution and other forms of prejudice. What is missing, then, is not the ability to subsume these cases, but the lack of explicit consideration of those fleeing prejudice that extends across borders. David Owen (Reference Owen, Miller and Straehle2019; Reference Owen2020) discusses differentiating refugees on the basis of the harm that they have faced, arguing that those fleeing persecution are entitled to immediate citizenship in their state of asylum, whereas others fleeing generalized violence require protection of their human rights with an entitlement to membership developing over time. He distinguishes between three categories of protection: asylum, sanctuary, and refuge. However, this account alone cannot address the complex and varied harms faced by displaced people. Such harms often transcend borders and transform depending on context; the harms produced by displacement depend on not only their cause but also the sociopolitical conditions that constitute one’s vulnerability.

Annamari Vitikainen (Reference Vitikainen2020) offers a normative argument in favor of liberal-democratic states prioritizing LGBTQ refugees for resettlement on the grounds that they are best able to protect against further injustice. According to Vitikainen, such a claim to priority only occurs in situations of extreme scarcity where the state must choose between claimants and when they are equal in every aspect of their claim to asylum (Reference Vitikainen2020, 76).Footnote ⁵ This paper appears to be the only published piece related to LGBTQ refugees in the political theory and ethics literature. Deeper engagement with this topic requires consideration of not only specific obligations to the LGBTQ displaced but also to how inclusive practice could challenge core assumptions in the political theory of refuge more broadly.

Importantly, we do not argue that this absence is purposeful or intentional. We simply hope to issue a call to action that alerts theorists to this blind spot. We use the case of the LGBTQ displaced to show that consideration of these complex social harms has an influence on questions of postadmission protection.

The Case of LGBTQ Refugees

LGBTQ refugees face forms of violence that often persist after admission into the state of asylum. The enduring injustice faced by LGBTQ refugees thus challenges assumptions related to territoriality: that the harms faced by refugees are bounded by territorial borders and that admission (legal or territorial) resolves these harms. There are two ways of understanding “postadmission.” First, one could address injustices faced during the refugee status determination (RSD) process. In these cases, claimants will be within or proximate to the borders of the state but have not yet been offered formal status. Second, one might attend to the injustices faced by individuals even after they have received legally recognized status.Footnote ⁶ Both approaches are required. However, this research note serves to draw particular focus to the second: what happens to refugees after they have been both territorially and legally admitted into the state of asylum?

The first focus on the process of seeking asylum has been addressed by much of the scholarship on LGBTQ displacement within migration and refugee studies (Luibhéid Reference Luibhéid2008; Ritholtz Reference Ritholtz2022). Once the acceptance of LGBTQ refugees became established within the global refugee regime, scholars focused on the RSD process, particularly during the interview stage where prejudice can compound based on the applicant’s sexual orientation, gender identity, race, religion, disability, and culture (Millbank Reference Millbank and Crock2015; Murray Reference Murray2014; Prearo Reference Prearo2021; Tschalaer Reference Tschalaer2021). These scholars argue that RSD processes privileged Global Northern conceptions of sexuality and gender, unethically mining traumatic experiences. Other scholars have identified how practices of the global refugee regime exacerbated vulnerabilities, such as when detention and encampment expose LGBTQ refugees to prejudice from other refugees and host communities (Cragnolini Reference Cragnolini and Spijkerboer2013). These works acknowledge the burdens experienced by LGBTQ refugees during the asylum process.

This scholarship has also addressed the normative and exclusionary effects of current systems of inclusion. Meghana Nayak’s (Reference Nayak2015) work reveals how the refugee regime in the United States reinforces a narrow narrative of LGBTQ vulnerability to signify inclusion while distracting from prejudicial exclusions in its own asylum regime. Satvinder Juss (Reference Juss2015, 129) argues that this acceptance of LGBTQ refugees has become a way for the Global North to signpost their “civility” against the “barbarism” of the Global South. Fatima El-Tayeb (Reference El-Tayeb2011) has explored how actors weaponize the values of LGBTQ inclusion to racialize and other minorities in Europe and thus, deny these minorities inclusion into the European body politic. These accounts reinforce Jasbir Puar’s (Reference Puar2007) theory of homonationalism, where Global Northern countries use their “concern” for LGBTQ populations to justify intervention, often through homophobic institutions like the military, in the domestic politics of other countries. This scholarship reveals serious injustices in the RSD process and in supposedly inclusive reception policies. As a result, on the first understanding of postadmission as focused on the asylum-seeking process, we know that serious injustices and harms persist.

The second stage of postadmission, what happens to refugees after they have received formal status, shows a further weakness in the assumption that the granting of legal or territorial status prevents future harm. Scholarship outside of political theory on LGBTQ refugees reveals that though these displaced populations might enter a new state, they are rarely fully included. Their unique needs are not met and thus, in addition to violence and discrimination, they experience isolation and exclusion (Danisi et al. Reference Danisi, Dustin, Ferreira and Held2021; Jansen Reference Jansen and Spijkerboer2013). Sima Shakhsari (Reference Shakhsari, Haritaworn, Kuntsman and Posocco2014) identifies this state of refuge failure to provide proper support to LGBTQ refugees as its own form of violence. They recount the story of Mahtab, a Turkish transgender woman refugee in Canada, who killed herself after learning that her state-provided housing support would be discontinued. The tragedy of Mahtab’s story reveals the severe consequences of exclusion even after receiving admission in a new state.

LGBTQ refugees require more than simply admission. When LGBTQ refugees flee generalized societal persecution, they often cannot be resettled in communities with refugees from the same nation, as the social structures that permit prejudice-based persecution can persist in diaspora communities (Ritholtz and Buxton Reference Ritholtz and Buxton2021). However, the sites of continued persecution and harm for the LGBTQ displaced are multiple and do not only arise within migrant communities. An individual’s state of origin can also make it harder to flee as an LGBTQ person. The recent displacement of millions of people from Ukraine demonstrates this point. War affects everyone, but its effect is discriminate (Sjoberg Reference Sjoberg2013). For LGBTQ Ukrainians attempting to flee, their sexual and gender identities have potentially serious consequences. Transgender people struggle to cross borders if their documentation does not reflect their gender identity, and when it does, they remain subjected to invasive practices such as strip searches. Many transgender women have been forced into military conscription, even if the government formally recognizes their gender identity (Su and Ritholtz Reference Su and Ritholtz2022). For those who seek asylum in neighboring states, their precarity will not end as they are entering two states, Poland and Hungary, whose governments have been harassing their own LGBTQ populations for political gain (Ayoub and Page Reference Ayoub and Page2020). Such complications are obviated when the focus is primarily on admission.

Although most LGBTQ refugees receive asylum for reasons other than their sexuality or gender identity, those that receive asylum on these grounds often travel alone, as persecution can come from within families, giving them little access to community support. When they do stay in these communities, many remain in the closet (Heartland Alliance 2012). These structures of exclusion, even if unintentional, further marginalize LGBTQ refugees.

Continued harm in the state of asylum is not unique to LGBTQ refugees, who have many other identities. Thus, conceptualizing vulnerability to harm requires considering the intersections of these identities (Reid and Ritholtz Reference Reid and Ritholtz2020). Vulnerability during postadmission is required in discussions of other social groups such as women and refugees with disabilities, whether LGBTQ or not. For example, cis-and-straight women seeking asylum from domestic violence might be situated similarly to LGBTQ refugees vis-à-vis access to family and informal networks of support (Wachter, Cook Heffron, and Dalpe Reference Wachter, Heffron and Dalpe2021). Moreover, new harms can be created in the process of resettlement. For instance, displaced people of color relocated to neighborhoods in countries with a history of racism or xenophobia are likely to face discrimination and hatred even when they are supposedly protected (Bentley Reference Bentley2020). Many of these refugees might be experiencing certain forms of prejudice for the first time from a hostile local population, but it again demonstrates that admission alone is insufficient for ensuring protection. Furthermore, in recent years, there have been a series of incidents of resettled refugees (often dissidents) in the Global North who become violently targeted by repressive regimes including in Belarus, Russia, and Rwanda. All of this complicates the image of the Global North as a place of total safety free from violence and persecution.Footnote ⁷

The literature on LGBTQ refugees from beyond political theory raises at least two substantive questions for normative approaches. First, can LGBTQ refugees be assisted through the usual standards of protection? Second, does the existence of harms that transcend and mutate across borders throw into question the very efficacy of the current asylum regime?

Sanctuary after Asylum

Persistent harms faced by LGBTQ refugees challenge existing theorization about displacement. Political theorists have yet to address the obligations of states after admission with a focus on these marginalized groups. A lack of focus on domestic injustice potentially mirrors Inéz Valdez’s (Reference Valdez and Bell2019, 128) critique of the global justice literature. When theorists do discuss the existence of injustice within the “prosperous West” they do not consider “forms of domestic injustice … whose redress might be empirically, normatively, and politically connected to causes we tend to identify with cosmopolitan justice.” Most existing theories of refuge conceptualize harm as an external threat, outside of the Global North, posed to a specific kind of the refugee, either as a dissident fleeing individualized persecution or as someone escaping generalized harms such as breakdown of state protection. There is little discussion of those fleeing social harms fueled by prejudice that continue across borders perhaps more readily than other causes of displacement. Our focus on LGBTQ refugees, then, disrupts this problem of the imagination.

A lack of focus on postasylum protection contributes to a worrisome assumption that once entry to the liberal-democratic state has been secured, there is little left to discuss. We know from the above cases that this is not true: the assumption that the liberal state always provides a minimal standard of protection bars any discussion on social wrongs like homophobia or oppression across borders. The universality of protection that is assumed postasylum puts particular refugees at risk of further injustice and persecution. Therefore, LGBTQ refugees may be entitled to distinct remedies that take account of the kinds of harms that they face. As requested by El Habachi, LGBTQ refugees could be offered different forms of housing or be able to choose where they are resettled—for instance, in places that have existing support structures or successful precedents of community inclusion for LGBTQ refugees. Further research could extend to remedying other harms that LGBTQ refugees face in new states, including accessing medical care, legal assistance, and family reunion.

However, the implications of this focus reveal deeper and more challenging questions for political theorists. That is, if homophobic persecution can worsen once in the state of asylum, thus denying admission to the Global North as a sufficient condition to guarantee protection, then the structure of refugee protection, in its current conceptualization of admission as protection, becomes unstable. The case of LGBTQ refugees therefore poses a more fundamental challenge to the political theory of refuge—it lays bare the latent methodological nationalism (Sager Reference Sager2016), within not only our conceptualization of the state but also the ways we think about the protection of the globally displaced. How should political theorists respond to this challenge? First, they might diversify the kind of displacement around which they center their approaches. As we hope to have shown, shifting our attention to LGBTQ refugees (and others fleeing generalized forms of social exclusion and oppression) can reveal new conceptual challenges. Second, theorists may wish to further consider state obligation toward recognizing refugees as “necessitous strangers” and the broader category of migrants who suffer similar forms of continued harm. LGBTQ refugees and LGBTQ migrants alike may have similar experiences of state protection or dereliction. Third, theorists might examine the extent to which legal (and theoretical) regimes tied to displacement obviate certain state features when it comes to meeting these obligations. We have shown that some sources of persecution and harm render physical borders inconsequential, as they do not by themselves resolve the harms experienced by marginalized groups seeking refuge. Thus, there may be a need to reconsider the efficacy of entry as the sole mechanism of protection. There are of course many more avenues that focusing on postadmission protection might uncover.