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LGBT+ History Month: Using litigation to address intersectional vulnerabilities to climate change

Posted on 29 February 2024

The effects of climate change impact all of us; from sudden and catastrophic disasters, to the gradual onset of drought, desertification and sea level rises. It is now widely recognised that these effects will not be felt equally across the world and, particularly, will disproportionately impact Global South countries. What is less recognised, however, is that certain groups are more vulnerable to the effects of climate change by virtue of their individual identity, on account of intersectional vulnerabilities such as race, age, gender and disability as well as sexual orientation and gender identity. The climate justice movement is grounded in fighting against this inequality.

The LGBTQIA+ community has faced marginalisation and discrimination throughout history, which continues today and manifests in myriad inequalities. LGBTQIA+ people also lack legal protection internationally: while the Yogyakarta Principles set out human rights concerns affecting LGBTQIA+ populations, there is no binding treaty protecting Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC)in international law. Because of this, legal protection varies country by country.

The lack of domestic legal protections apply differently to different groups within the LGBTQIA+ community. From South Africa, where protection from discrimination on the grounds of sexual orientation is enshrined in the constitution, to Iran, where certain homosexuality offences are subject to the death sentence. At least 9 countries also expressly forbid the expression of transgender identities, whilst others, such as Brunei and Oman, criminalise even "imitating" a person of a different sex. Intersex people have distinct challenges and human rights concerns which are often overlooked. For example, intersex people can face forced and coercive medical interventions, or sterilization without their informed consent. The Inter-American Commission on Human Rights reports that these surgeries are standard throughout the Americas, including Argentina, Brazil, Canada, Colombia, Costa Rica, Chile, El Salvador, Mexico, the United States, and Uruguay, among others.

Whilst a lack of international legal protection impacts the various groups within the LGBTQIA+ community differently, this, as well as widespread discrimination, has a collective negative impact on LGBTQIA+ people. This can lead to reduced access to education, stable employment and healthcare, which can contribute to financial instability. For example, whilst only 7.2% of the adult US population identify as "LGBT", 40% of homeless youth in the US identify as "LGBT", being forced from secure housing due to familial conflict, abuse and discriminatory property owners.

This article contends that the unique challenges of minority groups should be taken into account when addressing climate change, by centring human rights to ensure vulnerable groups, including those within the LGBTQIA+ community, are adequately protected. It then explores, by considering the development of caselaw, whether human rights law can be applied within the context of climate litigation, to level the playing field.

Unique challenges in the context of climate change

LGBTQIA+ individuals can face a unique set of challenges in the context of climate change. The consequences of this are two-fold: the increased likelihood that members of the LGBTQIA+ community may experience disproportionate exposure to the effects of climate change; and the unequal treatment of particular LGBTQIA+ communities when dealing with such effects. Two particularly notable examples of this are in the context of disaster relief and migration.

Disaster relief

Whilst climate-related disasters and extreme weather events do not discriminate, relief and recovery practices often do. In relief efforts, the specific needs of LGBTQIA+ people are often overlooked, particularly when providing shelter. Response teams often rely on the gender binary when identifying survivors, categorising individuals and allocating accommodation, facilities and government support.

The Aravanis are an Indian community who cannot be defined using the gender binary. They tend to be feminine-presenting, however do not generally see themselves as men or women. Following the Indian Ocean Tsunami of 2004, Aravanis were effectively "invisible", due to a continuation and reinforcement of institutional discrimination and discriminatory policies faced by the Aravanis before the Tsunami. The deaths of Aravanis were not recorded in official data they were ineligible for government compensation, did not receive relief assistance and were excluded from evacuation shelters, being forced to sleep in the open. A similar scenario occurred following the Mt Merapi eruption regarding the waria of Indonesia, a minority community who also fall outside the gender binary. Evacuees of the volcano were listed as either male or female, rendering waria invisible and forced to find accommodation with friends, rather than use official centres. Again, similar findings have been described in relation to the baklas of the Philippines (who are also gender non-conforming) who were harassed when accessing relief supplies, if not denied access altogether. These examples illustrate instances where vulnerable populations have experienced unique harms which breached their human rights when dealing with the effects of climate change.


Crossing international borders can present a specific and unique threat to LGBTQIA+ people. 64 UN member states criminalise being LGBTQIA+, exposing people to heightened persecutory risk when entering those countries. This is especially true of transgender and gender diverse people whose lived gender identity might not be reflected on their identity documents, causing them to be refused admittance at borders. This was illustrated by the treatment of Ukrainian asylum seekers, forced to flee Ukraine due to the onset of war with Russia. Advocacy groups report that transgender women have been turned away by border agents because their identity papers listed them as men. Ukraine's neighbouring countries are among the least tolerant of LGBTQIA+ people in Europe, including countries with "anti-gay" laws such as Hungary and Poland. This resulted in the "double exclusion" of LGBTQIA+ migrants who were ostracised for both their nationality and their LGBTQIA+ identity.

Climate change increasingly contributes to the displacement of communities. In 2022, 84% of refugees and asylum seekers were fleeing from highly-climate-vulnerable countries, an increase from 61% in 2010. Taking Africa as an example, increased displacement caused by climate change poses a particular threat to the LGBTQIA+ community. While the African continent is particularly vulnerable to climate change, it is also a patchwork of anti-LGBTQIA+ laws. Over half of the continent's 54 nations criminalise LGBTQIA+ people, in some cases employing the death penalty. The mass movement of communities due to the impacts of climate change across African borders would create a heightened risk for LGBTQIA+ migrants, who may be crossing into jurisdictions where their safety is compromised due to their identity.

A legal approach

Litigation is a powerful tool for seeking justice. In the fight to achieve climate justice, litigation can be leveraged to ensure vulnerable groups are afforded adequate protection from the impacts of climate change. The development of caselaw indicates an increasing focus on human rights law as a way to achieve this.  

The case of Teitiota v New Zealand [2020] was the first time that the human rights impacts of climate change were directly addressed by an international human rights treaty body, by noting that environmental degradation could "create pathways" into human rights protections. Here, the applicant was unsuccessful in his claim for asylum from the effects of climate change in Kiribati where sea level rises have resulted in scarcity of land, saltwater contamination of freshwater resources and overcrowding. This has caused violent land disputes, a housing crisis, crop failures and increased incidents of conflict. The UN Human Rights Committee (HRC) did not consider that the applicant and his family were personally at real risk of immediate harm on return to Kiribati. This demonstrates the claim's high threshold, as it was unsuccessful even in relation to Kiribati, a country long recognised as being highly susceptible to climate change. In its judgement, the NZ High Court also noted that the effects of natural disasters are often felt "indiscriminately". This fails to consider the specific vulnerabilities to climate change faced by vulnerable groups, for example the applicant's children in this case, who will likely experience more environmental harm in Kiribati in their lifetime than their parents.

The Teitiota position was built upon in the case of Daniel Billy & Ors v Australia [2022], which considered the unique challenges of an indigenous group as a result of climate change. A group of Torres Strait islanders argued that Australia's inaction against climate change violated their human right to cultural enjoyment. The HRC noted the manner in which the islanders' traditional way of life is inextricably linked to the land itself, such as cultural ceremonies which may only be performed on the islands. By failing to adopt "timely adequate adaptation measures", Australia was found to have violated its obligation to protect the communities' right to enjoy their indigenous culture. This is important as it expands on Teitota by considering the specific vulnerabilities of the applicants. This could open the door for litigation to address the challenges of groups particularly vulnerable to climate change.

International climate litigation is still in its infancy. With relatively few cases to draw on, it is still shrouded in uncertainty without concrete precedents. The development in caselaw demonstrates an increasing understanding of the intersectionality between the impacts of climate change and a community's specific vulnerabilities in the context of human rights law. This, and a growing appetite for climate litigation generally, presents an opportunity to develop the law, to ensure that vulnerable groups, such as LGBTQIA+ communities, are adequately protected in the overarching fight for climate justice. It remains to be seen how the law will develop, but the case studies set out in this article indicate a pressing need for international jurisprudence to recognise that climate change does in fact discriminate.

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