Asylum Law for Transgender People

The 1951 Refugee Convention recognizes persecution on the grounds of belonging to a 'social group' as a basis for refugee status.

International Legal Basis

The 1951 Refugee Convention recognizes persecution on the grounds of belonging to a 'social group' as a basis for refugee status. UNHCR guidelines confirm that transgender people may fall within this definition.

Dutch Policy

The Immigration and Naturalisation Service (IND) applies specific working instructions to LGBTI asylum seekers, including transgender people. When assessing an application, the IND takes into account country information on persecution, social acceptance and access to healthcare.

Practice

In practice, concerns have been reported regarding accommodation locations, gender registration and access to transgender healthcare during the asylum procedure. Organisations such as COC Nederland and Transgender Netwerk Nederland advocate on issues related to this topic. How COC grew into a key player in legislation and policy is explained on genderlobby.nl, in the profile of COC Nederland.

European Case Law

The Court of Justice of the European Union has clarified the rules for LGBTI asylum seekers in three judgments. In 2013, it ruled that asylum seekers cannot be expected to conceal their sexual orientation in their country of origin in order to avoid persecution. In 2014, it set limits on investigations into credibility: questions about sexual acts and requests for evidence of them are not permitted. In 2018, it prohibited psychological tests to determine a person's sexual orientation. The judgments concerned sexual orientation, but they are also applied to gender identity.

Credibility

The central issue in every application is whether the account is credible. The IND examines the person's personal story: how they became aware of their identity, what this meant in their surroundings and what happened. Stereotypical expectations must not play a role. For transgender asylum seekers, the situation in their country of origin is also relevant: whether legal gender recognition is possible, whether violence by the authorities or private individuals occurs and whether the authorities provide protection.

Accommodation and Healthcare

During the procedure, asylum seekers stay in accommodation provided by the COA, where they share living quarters with people from their country of origin. This can be unsafe for transgender asylum seekers; relocation is possible upon request. Medical care is provided under the healthcare scheme for asylum seekers. An already started hormone treatment can be continued, but new treatment is subject to the same waiting times as for anyone else. How accommodation and healthcare for this group are organised in the Netherlands is described by trans-nederland.nl in its dossier on refugees and trans people. The international framework is set out under international rights, while case law from the human rights court can be found under the European Court of Human Rights.