B., a national of Peru, requested international protection in France claiming to have been the victim of persecution and serious harm by the Peruvian authorities and society, on the one hand, and by a criminal group, on the other, on account of gender identity. By decision of 27 November 2024, the French Office for Refugees and Stateless Persons rejected the request. The applicant challenged the decision before the National Court of Asylum (CNDA).
The CNDA allowed the appeal lodged by the applicant and annulled the decision of OFPRA.
The court first noted that, depending on the circumstances prevailing in a country, persons may be members of a particular social group on account of their sexual orientation and/or gender identity. Furthermore, although the existence of legislation specifically punishing transgender persons may lead to the conclusion that those persons form a particular social group, the absence of such criminal law does not mean that no persecution of that particular group takes place, since persecution could be based on provisions of ordinary law that are abusively applied in relation to the social group or based on the authorities’ conduct or encouraged by the authorities, or simply tolerated by them.
The court then considered publicly available country of origin information concerning transgender persons in Peru, from which it concluded that they are subject to social stigmatisation, widespread discrimination and violence, they are particularly vulnerable to police abuse and impunity.
The court referenced a judgment by the Inter-American Court of Human Rights of 12 March 2020, in which that court had ruled Peru was responsible for hate crimes and structural discrimination against sexual and gender minorities.
The court also observed that a presidential decree of 10 May 2024 which had classified trans identity, non-binarism and intersexuality as mental illnesses, drawn up by the Ministry of Health, was abandoned, but transgender people often do not have valid identity documents, thus limiting their access to public services and making them particularly vulnerable to trafficking in human beings. The court further noted that sexual and gender minorities faced widespread discrimination, based on their sexual orientation and gender identity, in employment, housing, education and health. The court further observed that although Article 323 of the new Peruvian Criminal Code condemned discrimination on grounds of sexual orientation and/or gender identity and provided that they are aggravating circumstances, homosexual or transgender persons do not enjoy effective protection in practice.
The court also referenced a note published by OFPRA on 22 March 2022 entitled ‘Peru: Situation of sexual and gender minorities since 2016’, which noted that transgender people are the most vulnerable to discrimination by the state authorities and that they may be victims of police extorsions and arbitrary detentions.
In addition, the court referenced the 2023 Global Report of Human Rights Watch, which recorded political discourse particularly hostile to transgender people and their significant rejection within Peruvian society, forcing them to conceal their sexual orientation and/or gender identity. Further concordant information referenced by the court included an article from the Gender in Geopolitics Institute from 13 December 2023, which referred to the police as the principal actor which violates human rights in Peru, especially against transgender persons, information from the Department of State of the United States particularly for 2023, the Human Rights Observatory for LGBTI +, the World Organisation Against Torture which noted in November 2018 that transgender women were regularly subjected to arbitrary detention and sexual violence committed by members of the national police, and the report of June 2024 published by the LGBTI Rights Observatory of the Peruvian University Cayetano Heredia, published in June 2024 which reported that among the 54 persons identified as LGBTIQ in Peru between 2020 and 2023, 30 were transgender women.
Thus, the court concluded that transgender persons form a particular social group in Peru.
Regarding the present case, the court noted that since childhood, the applicant was attracted by clothes and activities perceived as feminine, started cross-dressing clandestinely to attend events frequented by the LGBTIQ community. After being discovered by family members, the applicant was subsequently ill treated by them. Later on, the applicant began hormonal treatment and, at the same time, was involved in prostitution. Faced with discrimination the applicant moved to another province, and then to Argentina, Europe and then back to Peru where the applicant was the victim of extortion by an individual belonging to a criminal group. After refusing to pay, the applicant became a victim of violence and unsuccessfully tried to lodge a complaint with the law enforcement authorities. When the applicant finally succeeded in lodging a complaint, the authorities refused to take statements into account and merely noted acts of discrimination.
On the applicant’s situation, the court noted that it was obvious from the file that the statements made were spontaneous and consistent as regards the discrimination and violence suffered first by members of the family and the neighbourhood, then in the context of prostitution activities, of moving to another province, the violence by the member of a criminal group and the attempts to obtain effective protection from the authorities, detailing their inaction.
Thus, the court concluded that B. may have a well-founded fear of being persecuted in Peru on account of membership of the social group of transgender persons. Therefore, the court recognised refugee protection for the applicant.