Rights of LGTBIQ+ migrants

Sexual orientation and gender identity remain one of the main grounds for discrimination, persecution and criminalization in the world. This circumstance causes the forced displacement of thousands of LGTBIQ+ people from their places of origin in order not to suffer physical punishment, imprisonment or even, in some countries and contexts, death sentences.

The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) points out that there are currently at least 64 countries in the world that have norms that discriminate and criminalize the LGTBIQ+ group. Of these countries, six still carry the death penalty for same-sex sexual acts, and in five others there is no legal certainty.

On the other hand, in countries such as Spain, where there is extensive legislation for the recognition of LGTBIQ+ rights and their effective protection, as well as rights of redress against discrimination and violence due to LGTBIQphobia, many people who are part of the group continue to be discriminated against.

The ‘State LGTBI+ 2023’ survey, prepared by 40db, for the State LGTBI+ Federation, states in its conclusions that between 283,000 and 325,000 LGTBI+ people were victims of attacks due to their sexual orientations or identities in the last 5 years, figures that are far from the 56,000 complaints registered for aggression in Spain in that same period of time. Another clear example that emerges from the conclusions of the aforementioned report is that around 25% of the members of the LGTBIQ+ collective in Spain does not openly recognize their sexual orientation, precisely because of fear of being subjected to some violent or discriminatory act.

On the other hand, according to the data, on average only two out of ten experiences of hatred suffered by the LGTBI+ collective are reported. A 70% of the people attacked has preferred not to respond to the reason for the absence of complaint. In addition, a 69.7% of the LGTBIQ+ collective in Spain considers that the police are little or nothing committed to the collective.

This research reveals that, in the last five years, the 29th% of LGTBIQ+ persons has been harassed; the 27,5%, discriminated against, and 8.6% has suffered at least one physical or sexual assault.

According to ILGA Europe, 2022 was the most violent year for LGTBIQ+ people in the last decade and highlights that this increase is largely due to the increase in hate speech.

Relevant concepts and definitions

Direct discrimination: This is the situation in which any person, or group in which he or she is a member, is, has been, or could be treated less favourably than others in a similar situation for reasons related to his or her sexual orientation or identity, gender expression or sex characteristics.

Indirect discrimination: This occurs when an apparently neutral norm, criterion or habitual practice causes one or more persons a particular disadvantage because of their sexual orientation or identity, their gender expression or their sexual characteristics.

Multiple and intersectional discrimination: This discrimination occurs when a person is discriminated against, simultaneously or consecutively, for two or more reasons of those provided for in Law 4/2023 and/or Law 15/2022, of 12 July, integral to equal treatment and non-discrimination. An example of this would be to be discriminated against for being an LGTBIQ+ person and, in addition, for being a migrant.

Discriminatory harassment: It is the conduct that is carried out for any of the discriminatory causes established in the law, with the aim of violating the dignity of the person (or group in which it is integrated) and thus create an intimidating, degrading, offensive or hostile environment.

Discrimination by mistake or discrimination by association: Discrimination by association exists when a person or group in which he or she is a member, because of his or her relationship with another (or others) on which one of the grounds of discrimination based on his or her sexual orientation or identity, gender expression or sex characteristics exists, is subject to discriminatory treatment. Discrimination by mistake is discrimination based on an incorrect assessment of the characteristics of the person or persons discriminated against.

LGTBIQ: They are the acronyms of Lesbians, Gays, Trans, Bisexuals, Intersexes and Queer. It groups people with the sexual orientations and gender identities related to those five words, as well as the communities formed by them.

Intersex: It is the condition of those people who are born with biological, anatomical or physiological, sexual or reproductive characteristics that do not correspond to the notions established for the female or male bodies. For example, being born with male ovaries and genitalia.

Sexual orientation: It is about physical, sexual or affective attraction to a person. There are many ways to be and live sexuality.

Sexual identity: It is the internal and individual experience of sex as each person feels and defines it, regardless of whether it corresponds to the sex assigned at birth.

Gender expression: It is the manifestation that each person makes of their sexual identity.

Trans people: Transgender people have a gender identity that does not match their assigned sex at birth and want to transition to the sex they identify with.

LGTBIQ+ family: It is that family in which one or more of its members are LGTBIQ+ people, including homoparental families, that is, those composed of lesbian, gay or bisexual people with minor descendants who are stable under guard, guardianship or parental authority, as well as with older descendants with disabilities and who are in charge.

LGTBIQphobia: It is any attitude, behavior or speech of rejection, discrimination or intolerance towards LGBTIQ+ people for the fact of being one (or being perceived as such).

Homophobia: Any attitude, behavior or speech of rejection, discrimination or intolerance towards homosexual people because they are homosexual (or perceived as such).

Biphobia: Any attitude, behavior or speech of rejection, discrimination or intolerance towards bisexual people because they are bisexual (or perceived as such).

Transphobia: Any attitude, behavior or speech of rejection, discrimination or intolerance towards trans people because of being trans (or being perceived as such).

Incitement, order or instruction to discriminate: Any inducement, order or instruction to commit a discriminatory act on any of the grounds set forth in this Act is discriminatory. The inducement must be concrete, direct and effective in order to give rise to discriminatory action on the part of another person.

LGTBIQ+ People's Rights

Right to apply for asylum

Migrants who have had to leave their country due to persecution or a real risk of inhuman treatment, torture, prison sentences, or even death sentences, may apply for international protection in Spain.

Spain ratified the 1951 Geneva Convention on the status of refugees and their 1967 New York Protocol. The definition of refugees can be found in Article 1. In Spanish legislation, this is found in the Law 12/2009, of 30 October, regulating the right to asylum and subsidiary protection, which defines the concept of refugee in Article 3:

‘Refugee status is granted to any person who, owing to a well-founded fear of persecution on grounds of race, religion, nationality, political opinion, membership of a particular social group, gender, sexual orientation or sexual identity, is outside the country of his or her nationality and is unable or, owing to such fears, unwilling to avail himself or herself of the protection of that country, or a stateless person who, lacking nationality and being outside the country of former habitual residence.’

The Right to apply for asylum, is a right provided for in Article 14 of the Universal Declaration of Human Rights, which states the following:

“1. In the event of persecution, everyone has the right to seek and enjoy asylum in any country.
2. This right may not be invoked against a legal action actually brought for ordinary offences or for acts contrary to the purposes and principles of the United Nations.’

Right to equality and non-discrimination

In Spain, all people are equal regardless of their sexual orientation, gender identity, gender expression or sexual characteristics. The Constitution and laws prohibit any form of discrimination on these grounds.

Article 14. EC: ‘Spaniards are equal before the law, without any discrimination based on birth, race, sex, religion, opinion or any other personal or social condition or circumstance.’

It is a fundamental right and corresponds to every person who is in Spanish territory, regardless of their administrative or migratory situation.

The Spanish authorities are obliged to treat LGBTIQ+ persons on an equal footing and must protect them from any form of discrimination and in any facet of their lives. For example, in Spain it is prohibited to:

– You are dismissed from your job because you are homosexual.

– That they do not give you health care because you are trans.

– Refuse to provide you with a public service because it is intersex.

– Or to be expelled or not admitted to an educational institution on the grounds that you are a lesbian.

LGTBIQ+ family

In Spain, LGTBIQ+ families are protected against discrimination. In 2005, same-sex marriage was legalized in Spain, regardless of gender identity.

From there, couples formed by people of the same gender enjoy the same rights and duties as those formed by people of different gender.

This means, for example, that same-gender couples can adopt under the same conditions as heterosexual couples.

Therefore, since 2005, all families are equal and no one can suffer discrimination based on the sexual orientation or identity of their parents.

Discrimination and hate crime

Hate Crimes are those crimes that are committed for racist, homophobic, political reasons or for any other type of discrimination regarding the ideology, religion or beliefs of the victim, the ethnicity, race or nation to which he belongs, his sex, age, sexual orientation or identity, reasons of gender, aporophobia or social exclusion, the disease he suffers or his disability; irrespective of whether such conditions or circumstances actually exist in the person to whom the conduct relates.

That is to say, any hate crime must meet two requirements: (i) the act constitutes an offence; and (ii) the act is motivated by bias or prejudice.

How to know if you have suffered a hate crime

You are a victim of a hate crime if you are assaulted, threatened or harmed because of your sexual orientation or gender identity, or because the aggressor believes that you are part of the LGTBIQ+ collective. Hate for LGTBIQ+ people is known as LGTBIphobic motivation. What motivates the attack is your LGTBIQ+ status or the simple appearance of being one. It is also considered a hate crime when the attack is motivated by racism, disability, religion or nationality of the person being attacked.

How to act against hate crimes

• Report the incident to the specialized hate crimes prosecutor's office or to the on-call investigating court.
• Report the incident to the Civil Guard or the National Police.
• Provide detailed information on the facts suffered.
• Describe literally the words and expressions uttered.
• If you believe that the incident may be motivated by your race, religion, nationality, culture, sexual orientation, disability, etc., indicate this circumstance.
• Detail, as accurately as possible, data on any brand or symbol.
• If you have been injured, however minor, go to a health center.
• If necessary, request an interpreter.
• After the incident, if the report is not going to be made immediately, it is recommended that all information about it be recorded or recorded.

Rights of victims:

• Rights of communication and effective information.
• Translation and interpretation rights.
• The right to information on available assistance and support measures (medical, psychological, legal, material aid, interpreter, etc.).
• Right of access to assistance and support systems.
• Right to access the legal aid system.
• The right of the victim to avoid contact with the offender in the police and judicial units.