Detailed Table of Contents

13 Working with LGBT/H Clients  

If this is your first case working with a lesbian, gay, bisexual, transgender and/or HIV-positive client, you may be unsure of what questions are appropriate to ask and which are not.  The basic rule, as with all aspects of asylum cases, is to be respectful, non-judgmental, and, for the most part, limit your questioning to issues that are relevant to the development of the case.  If you are LGBT/H yourself, you may want to disclose this to your client if you believe this will make him feel more comfortable.  On the other hand, you may feel comfortable not disclosing personal details of your life to your client.  There is no right or wrong approach, but the more comfortable you feel with your client, the more comfortable you will make him feel to open up about the basis of his claim.

Remember that sexual orientation, gender identity and HIV status are all separate issues.  An applicant may have claims based on more than one of these issues simultaneously, but you should treat each issue separately.  Do not make assumptions.  Just because and applicant is HIV-positive, doesn’t mean that he’s gay.  Just because an applicant is transgender, doesn’t mean that her romantic relationships are with men.

13.1 Working with Lesbian, Gay and Bisexual Clients

It is important to understand that every client is different.  Some clients will be very open about their sexual orientation, while others may feel very reticent to talk about an aspect of their identity that they perceive to be a “problem.”  Follow your client’s lead, make her feel comfortable, and understand that it will take time and several meetings before she begins to reveal information about her case. 

It is often a good idea to use the same language that the client uses to describe herself.  Thus if your client refers to herself as a “lesbian,” you can ask her, “When did you first realize that you were a lesbian?”  If she uses the word “gay,” use the word “gay.”  If your client calls herself a lesbian, it is best not to refer to her as “homosexual” because this word often has negative clinical connotations.

Remember clients who come from different cultures which are not as open about sexual orientation issues may not use the same terms to talk about their sexuality.  Thus, you may ask your client, “When did you come out as a lesbian?” and she may now know what this means.  Use your common sense and don’t leap to conclusions because your client expresses her sexuality in a way that’s different from you (even if you are LGBT/H yourself).

If your client is bisexual, explore what this means to her.  Sometimes clients from very homophobic cultures will self-identify as bisexual rather than homosexual even though they don’t really have any interest in the opposite sex, because bisexuality seems less taboo than homosexuality.  On the other hand, if your client has only had relationships with members of the opposite sex, and is not sure if she will ever act upon her attraction to women, it may be impossible to prove that she is a member of the particular social group of bisexuals.  See Section # 11.2 for more information about bisexual claims.

»  Practice pointer:  Avoid the terms “sexual preference” and “lifestyle.”  “Sexual preference” sounds like the client’s orientation is not immutable, like she may “prefer” women to men, but that it is something which could, perhaps be changed.  Likewise, “lifestyle” sounds like a choice.  Deciding to live in a fancy apartment in Manhattan versus renting a more reasonable priced outer borough apartment is a “lifestyle” choice; falling in love with someone of the same sex is not.

13.2 Working with Transgender Clients

If you have never worked with a transgender client before, remember the basic rules, be respectful and non-judgmental.  The term “transgender” can have different meanings to different people.  For some, being transgender simply means not conforming to rigid gender norms, and thus some people, for example very butch lesbians, or effeminate gay men may identify as transgender although they do not believe that their bodies do not match their gender identity.

For others, the term “transgender” means that the individual feels that the anatomical sex with which she was born does not match her gender identity.  Transgender people who feel this way often take medical steps to make their anatomy match their gender identity. 

Transgender people often refer to the anatomical sex which was assigned to them at birth as their “birth sex.”  The process of taking medical steps, such as hormone therapy, electrolysis, and/or surgery, to give an outward appearance that matches gender identity, is often called “transitioning.”  When referring to a client’s gender or sex after transitioning, the phrase “corrected gender” or “corrected sex” is often used. 

When working on the asylum claim with your client, you’ll want to ask her about any problems she had as a child.  Maybe she was perceived as particularly effeminate and suffered mistreatment as a result.  You’ll want to find out when she first realized that she was transgender and when she began living as a female.  You can also ask whether she’s taken any medical steps to transition and whether she has any plans in the future to transition further.

Remember, most transgender people never have genital reassignment surgery.  Surgery is expensive and rarely covered by health insurance.  For transgender men (F–>M) the surgical techniques are not as advanced as they are for transgender women.  Gender identity is comprised of much more than just anatomy, and some transgender people never choose to undergo any medical steps to transition.

Also, remember that being “transgender” is not a third category of gender; transgender people, like non-transgender people, are either male or female.  Don’t refer to your client as a “transgender” person; refer to her as a transgender woman.

It is also important to understand that gender identity and sexual orientation are different aspects of a person’s identity.  Transgender individuals, like non-transgender individuals may consider themselves heterosexual, homosexual, or bisexual.  Don’t make assumptions about your client’s sexual orientation based upon her gender identity.  On the other hand, remember that even if your client identifies as heterosexual, he may be perceived as homosexual in his country and may fear persecution on this basis.  For example, if an F–>M transgender man had a relationship with a woman in his country in the past, people in his community may have considered the relationship lesbian, even if the applicant and his partner viewed the relationship as heterosexual.

13.3 Working with HIV-Positive Clients

If your client’s case is based in whole or in part on his HIV-positive status, you’ll need to get some information about his health.  Remember HIV and AIDS are not synonymous; HIV is the virus which leads to AIDS.  Your client can be HIV-positive without having full-blown AIDS.  It is only after an individual has suffered an AIDS-defining symptom, or had his CD4 cell count fall below 200, that he is given an AIDS diagnosis.  Once a person is diagnosed with AIDS, he will always be considered to have AIDS even if his CD4 cells rise and/or his symptoms go away.  You should be prepared to educate the adjudicator about the difference between being HIV-positive and having AIDS.  For information about AIDS-defining symptoms, see http://www.health.state.ny.us/diseases/aids/facts/questions/appendix.htm.

You should find out when your client was diagnosed with HIV as this will generally be relevant to the case.  Sometimes a recent HIV diagnosis can be used as an exception to the one year filing deadline.  On the other hand, if your client was diagnosed with HIV in his own country, it will be important to elicit whatever information you can about problems he experienced as a result of his HIV.

How your client contracted HIV is generally not relevant to the case.  Unless your client believes that he contracted HIV as a result of the persecution he suffered (for example being raped) there’s probably no reason to question your client about how he may have been infected with HIV.

You should make sure that your client is currently receiving medical care, and if he is not, you should try to find an appropriate referral for him to do so.  As the attorney in your client’s asylum case, it is generally not appropriate for you to give your client medical advice, or to counsel him about HIV transmission.  If you believe your client is not getting appropriate medical treatment or is engaging in unsafe behavior, you should refer him to an appropriate medical/social service professional. The non-profit organization which referred you the case should be able to provide you with referrals. 

You should talk with your client about any medical problems he’s had as a result of his HIV, whether he’s ever been hospitalized, and what medications, if any, he is currently taking.  You should get a letter from his medical and/or social service professional detailing the course of his illness, what medications he is currently taking, and what would happen if the medications were no longer available. 

Some states, such as New York, have very strict laws about revealing confidential HIV information.  Before a medical or social service professional can speak with you about a case, your client will have to sign a specific HIV release form.  Although attorneys are not strictly required to have a client sign such a release before disclosing his HIV information (for example to CIS), it is best practice to have your client sign the form.  The form is available at http://www.immigrationequality.org/uploadedfiles/HIV%20release-HIPAA%20compliant.pdf.

This Manual is intended to provide information to attorneys and accredited representatives. It is not intended as legal advice. Asylum seekers should speak with qualified attorneys before applying.