Since 1998, South Africa has recognised persecution based on gender and sexuality as legitimate grounds for asylum. This makes it the only African country to formally extend refugee protection to lesbian, gay, bisexual, transgender and intersex (LGBTI+) persons.
However, as research shows, the promise of freedom contained in its Refugees Act is yet to materialise for LGBTI+ people.
Scholars, activists and human rights bodies continue to document worrying trends in the asylum system. A recent analysis of refugee status denials involving LGBTI+ applicants identifies egregious misapplications of domestic and international law. Other studies suggest that homophobia, transphobia and corruption are common within the Department of Home Affairs, which is responsible for managing immigration and asylum.
These barriers to protection make it difficult for LGBTI+ asylum seekers to regularise their legal status, access services or find jobs. This increases their vulnerability to discrimination, exploitation, poverty and homelessness.
Earlier studies show that LGBTI+ people who move to South Africa face unique challenges. But they do not say much about the size and constitution of this population or the degree to which certain social, legal and economic issues affect it.
There are two reasons for this. First, research to date has been qualitative, small in scale and focused on particular cities or subgroups. Second, South Africa, like many refugee-hosting countries, does not release disaggregated data on grounds for asylum.
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The absence of reliable quantitative data makes it difficult – if not impossible – to hold Home Affairs, the police and other state entities to account. When reports emerge of LGBTI+ migrants and asylum seekers being mistreated, the government can dismiss these incidents as isolated or anomalous.
To respond to this knowledge gap, we developed a survey tool that could be distributed using WhatsApp. This allowed us to collect data from people who might otherwise be unwilling or unable to participate in research. We sourced information from 381 respondents, making it the largest data set of its kind in South Africa.
Our data shows that South Africa hosts significant numbers of LGBTI+ migrants and asylum seekers – something long suspected but difficult to prove. It also shows that this population is more dispersed and diverse than previously thought. Where someone lives, how they identify and how long they have been in the country can affect their ability to apply for or renew documentation or to generate income. It can also increase their susceptibility to violence and harassment.
The search for more data
Our goal was to collect baseline data that could not only augment existing research but also guide and support future advocacy work. As well as capturing basic demographic information, the survey posed simple questions about respondents’ gender, sexuality, documentation status and reason for migrating.
We wanted the survey to reach as many people as possible so we partnered with three well-known activists: Thomars Shamuyarira, Masi Zhakata and Anold Mulaisho. Each coordinates a network of LGBTI+ migrants and asylum seekers in a different part of the country. The community fieldworkers shared information about the project and enrolled anyone who wanted to take part.
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We opened the survey to all LGBTI+ people who have crossed an international border, regardless of their documentation status. We did this because the distinction between migrants and asylum seekers is blurred in South Africa. Failings in the asylum system push those who may be eligible for refugee protection into the migration system or force them to remain undocumented. Official legal categories can also differ from people’s experiences and self-identifications.
Old issues, new insights
The survey results provide further evidence that South Africa is failing to meet its legal obligations. It also offers surprising insights into respondents’ identities, locations, motivations and experiences. We limit our discussion here to five key findings:
Geographic spread
Our analysis shows that LGBTI+ migrants and asylum seekers are dispersed across the country far more widely than first thought. It is commonly believed that LGBTI+ people move to major economic hubs, such as Johannesburg and Cape Town, which are perceived to be more “gay friendly” than other locations. As a result, services targeting them are concentrated in these areas.
The number of survey respondents living outside metropolitan areas suggests a need to reconsider how resources and services are delivered.
Diversity of language
The survey responses show that LGBTI+ migrants and asylum seekers use a wide range of terms to describe their identities. Most remarkable was the use of terms commonly understood to indicate gender – such as “transgender” – to signal sexuality, and vice versa. Of equal interest was the widespread use of “non-binary”, a relatively new term in South Africa, and the limited use of “queer”, a much older term commonly used in advocacy circles.
This finding is of interest to researchers, activists, lawyers, service providers, state bureaucrats and other stakeholders who engage with this population.
Gender-based claims
South Africa extends protection from persecution based on both gender and sexuality. However, previous research indicates that transgender and gender-diverse people have had to claim asylum – or have been classified as claiming asylum – on the basis of sexual orientation.
Our data suggests a shift in this pattern. A number of respondents reported claims based on gender identity or expression. The long-term impacts of this remain to be seen, such as how these claims are treated by Home Affairs and whether they result in refugee status being conferred. It also raises questions about what kinds of advocacy are necessary to ensure these outcomes.
An inaccessible and confusing system
Most respondents reported being undocumented, an anticipated result given the barriers obstructing LGBTI+ people from claiming protection in South Africa. More interesting was the number of answers that seem to indicate confusion over asylum-related terms, categories, systems and processes. This tells us that programmes intended to inform and support LGBTI+ asylum seekers are not reaching all segments of this community.
Limited online access
There were many people who wanted to participate in the project but could not. Sometimes this was due to language issues, but mostly it was because they had a SIM card but no cellphone. This is concerning given how much advocacy and outreach work is delivered via digital channels.
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Where to from here?
A survey such as this cannot tell us everything, but it does provide crucial data on an under-researched and largely invisible population. Our hope is that state agencies use these findings to develop sensitisation programmes and improve service delivery. At the very least, this means treating LGBTI+ migrants and asylum seekers with dignity, respect and compassion, and upholding the rights guaranteed in law. Only then will the dream of freedom be realised for LGBTI+ people who move to South Africa.
