President Biden’s February 4 Memorandum on Advancing Human Rights of LGBTQI+ Persons Around the World directed the Department of State, in coordination with relevant federal agencies, to use a broad range of tools and resources to protect vulnerable LGBTQI+ refugees and asylum seekers. LGBTQI+ advocacy organizations have applauded the move and its positive impact on LGBTQI+ refugees and asylum seekers. While this directive is an important step, the Biden administration must take further action to both repair the damage of President Trump’s administration and learn from other nations’ leadership in ensuring protections for LGBTQI+ refugees and asylum seekers.

This memorandum is part of a larger picture of reinstating U.S. foreign and immigration policy on LGBTQI+ rights. It builds on President Obama’s 2011 memorandum by expanding — for the first time — the definition of protection from discrimination and violence by nonstate actors to include “gender expression,” “sex characteristics,” “queer,” or “intersex” rights. Biden released his memorandum as a national security measure, which deems the defense of LGBTQI+ rights as a national security priority for the U.S.  As the U.S. works to extend further protections to its people, Biden is taking a firm stance for international protection for LGBTQI+ individuals. 

Part of this is rolling back the previous administration’s decisions on LGBTQI+ issues. During his first week in office, Biden removed the ban on transgender members serving in the U.S. military and ordered all federal agencies to comply with nondiscrimination laws protecting LGBTQI+ individuals. Secretary of State Blinken committed to filling the department’s position of Special Envoy for the Human Rights of LGBTI People, which was left vacant under the prior administration. He also permitted U.S. embassies to fly the LGBTQ pride flag without restrictions, which the Trump administration had banned. 

While the Trump administration restricted access to asylum protections for transgender asylum seekers, the Biden administration has promised to provide necessary services and protections to LGBTQI+ individuals fleeing persecution. A 2020 report from former Secretary of State Mike Pompeo’s Commission on Unalienable Rights — a commission stacked with anti-LGBTQI+ activists  — was quickly repudiated by Secretary Blinken and removed from the State Department’s Policy Planning Committee website.

The Biden administration is also building on to what the U.S. can do to protect LGBTQI+ individuals worldwide. Several sections of the new memo require reporting on human rights abuses, diplomatic efforts, and extending financial assistance to international partners. Section 2 outlines increased protections for LGBTQI+ refugees and asylum seekers. Specifically, the memo requires that the Department of State “enhance ongoing efforts to ensure … equal access to protection and assistance,” ensure that “appropriate training is in place,” and consider the “potential increased use of Embassy Priority-1 referrals” for vulnerable LGBTQI+-identifying refugees. 

Yet, there are additional protections for LGBTQI+ refugees and asylum seekers that the U.S. could consider implementing:

1. End all unnecessary immigration detention.

As U.S. policymakers and the Department of Homeland Security consider alternatives to detention of asylum-seekers at the U.S.-Mexico border, they also must consider alternatives for LGBTQI+ asylum seekers. While immigration detention is modeled on our criminal detention system, it is not criminal detention — seeking asylum is not a crime. There is no reason why we should be putting immigrants, especially those who are vulnerable, in jail-like settings as the default option. Detention, rather, places vulnerable populations like LGBTQI+ individuals at further risk of abuse. 

Immigration detention can be a difficult, dehumanizing experience for anyone, but especially transgender women. While LGBTQI+ individuals represent only 0.14 percent of detainees held by Immigration and Customs Enforcement, they are the victims in 12 percent of all sexual assault and abuse cases in ICE’s detention network. A 2016 Human Rights Watch report details the horrific experiences of transgender women in ICE custody. It also highlights the common practice of transgender women being placed in solitary confinement, justified as the best available alternative to protect them from abuse by male detainees and guards. In response to this concern, detention facilities were built specifically to hold transgender individuals. However, increasing capacity for detention of transgender individuals is the wrong direction. 

ICE medical facilities have faced recent criticisms for poor quality of care, including delays for prescribed medications, misdiagnoses, testing delays, and no English interpretation for detainees. The poor conditions have led to the deaths of trans women in ICE custody, either due to suspected abuse or health complications while detained. The Southern Poverty Law Center reported that obstacles to care would be difficult for any detainee in ICE facilities, but especially for more vulnerable populations, such as LGBTQI+ individuals. Barriers abound to quality medical care, including hormone replacement therapy and treatment for HIV/AIDS. ICE is unfit to provide a respectful environment free of abuse, where quality medical care is available: It should cease to detain LGBTQI+ individuals.

While the fear persists that newly-arrived individuals will fail to show up for their immigration court hearings, independent studies show that the vast majority of individuals have a high appearance rate. The Transactional Records Access Clearinghouse notes that since “there is no legal requirement that immigrants actually receive notice, let alone timely notice, of their hearing,” these numbers “were remarkably high.” In fact, the appearance rate increases to a 99.9 percent when asylum seekers have representation, which makes it much more likely they will know their court dates. In circumstances where detention is warranted and based on a legitimate flight risk, a report by Human Rights Watch recommends that detainees be located in regions “more accessible to families, lawyers, and community support,” and that the decision to detain an individual be regularly reviewed by a judge. 

Alternatives to detention should be sought to promote humane asylum processing for all applicants, but it is particularly critical for LGBTQI+ asylum seekers. 

2. Improve recruitment of CBP agents and punish abusive behavior.

While President Biden’s memo requires DHS to “ensure appropriate training” for its staff and key partners to effectively identify and respond to the particular needs of LGBTQI+ refugees and asylum seekers, it does nothing to address the documented abuses perpetrated by Customs and Border Protection personnel on asylum seekers at our southern border.

A report by the Migrant Border Crossing Study (MBCS) offers alarming insights into how asylum seekers at the U.S.-Mexico border experience abuse at the hands of CBP agents, including homophobic and transphobic slurs. During the most recent data collection phase of the MBCS, among 1,109 surveyed, recently deported migrants, the research team found that 12 percent of respondents experienced physical abuse (e.g., “being punched, slapped, kicked, or thrown to the ground”) and 20 percent experienced verbal abuse (e.g., “racist, sexist, homophobic slurs; yelling; or cursing”), by U.S. officials while in custody. One in five individuals experiencing verbal abuse by U.S. officials and more than one in 10 experiencing physical abuse is unacceptable. 

While the reported abuse decreased from MBCS’ first data collection phase back in 2007 – 2009, the failure to hold CBP agents accountable for the abuse is alarming. 

The American Immigration Council (AIC) received data from multiple Freedom of Information Act requests on complaints of alleged abuse filed against CBP agents. 59 percent of complaints filed cited “physical abuse,” while the others alleged sexual and verbal abuse, as well as general conflicts of interest. While AIC could not assess each complaint’s merits, they found that in 96 percent of cases that had been decided, “no action” was taken against the accused officer. 

In total, the multiple sources of data — NGO abuse documentation efforts, peer-reviewed studies and data collection, and aggregated complaints lodged against CBP  — point to the routine mistreatment of asylum seekers while in U.S. custody. The story behind the data points to a widespread abuse pattern, often consisting of serious allegations of abuse which seldom result in appropriate consequences or accountability. 

While President Biden’s memo establishes requirements for additional training for CBP officers to be aware of the protections available to LGBTQI+ refugees and asylum seekers, it does nothing to address the physical, sexual, or verbal abuse these individuals might experience at the hands of CBP officers. A 2020 report by Daniel Martinez and co-authors outlines specific recommendations for improving CBP conduct, including but not limited to ending the use of CBP agents and officers as asylum officers, improving the agency’s hiring process to identify potentially problematic officers, refusing to hire officers that other law enforcement agencies have decertified, and increasing recruitment of racially- and gender-diverse candidates, as well as individuals with experience in child welfare and trauma. LGBTQI+ asylum seekers, among others, would benefit from these changes.

3. Adopt a version of Canada’s Rainbow Refugee Assistance Partnership.

While the U.S. is considering additional protections for LGBTQI+ refugees, one option could be to establish a complementary program for private refugee sponsorship of LGBTQI+ refugees, much like Canada’s Rainbow Refugee Assistance Partnership (RRAP), which allows Canadians to sponsor LGBTQI+-identifying refugees. 

Launched in 2019, RRAP allows Canadians to sponsor LGBTQI+-identifying refugees who are “fleeing violence and perspective based on their sexual orientation, gender identity, and expression.” RRAP scales up a program piloted with the Rainbow Refugee Society, which has provided support and coordination for sponsors who wanted to sponsor LGBTQI+ refugees since 2013. In this program, the Canadian government provides additional support (all start-up costs and three months of income) for all sponsored refugees, providing that a sponsoring group can commit to a further nine months of financial support. All refugees sponsored through this partnership remain outside of the sponsorship agreement holder caps – analogous to the U.S.’s presidentially-determined refugee ceiling – making this program complementary and additional to other refugee sponsorship programs. 

The Niskanen Center has long advocated for private sponsorship programs. President Biden’s February 4 EO on rebuilding the refugee resettlement program sets the stage for launching private refugee sponsorship programs in the U.S. — programs that improve refugee integration outcomes, directly engage the American people in the resettlement process, and increase support for refugee resettlement. 

While private refugee sponsorship programs are seeing a surge in momentum and support, there are still a lot of questions regarding their implementation. Last month, we published a policy brief outlining how the U.S. could launch a private refugee sponsorship program that complements existing resettlement infrastructure rather than replacing it. For example, private sponsorship programs could be used to help families sponsor their relatives, or universities sponsor students continuing their education. 

Conclusion

While President Biden repairs the damage of the previous administration, his recent memorandum is not a stopping point. Upon releasing the memo, Biden announced, “When we defend equal rights of the people the world over, of women and girls, of LGBTQ individuals, indigenous communities and people with disabilities, the people of every ethnic background and religion, we also ensure that those rights are protected for our own children here in America.” We can learn from Canada’s leadership in ensuring protections for LGBTQI+ refugees and asylum seekers through private sponsorship programs, and create safer processing procedures for LGBTQI+ asylum-seekers through CBP accountability and alternatives to detention.