Queering Asylum Law, Policy and Practice: LGBTIQ Refugees

Lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) people are subject to discrimination, violence and harassment in all parts of the globe. Whether in the developing or developed world, homophobia and transphobia remain a pernicious and pervasive problem. 78 countries criminalise consensual same-sex sexual activity. LGBTIQ people flee from these systemic human rights abuses to seek refuge.

Human rights of LGBTIQ people are an emerging locus of international law. A number of countries now provide asylum to sexual and gender minorities under the UN Refugee Convention category of ‘particular social group.’ The European Union has even listed sexual orientation as a basis for granting asylum (though sexual orientation does not cover acts that remain unlawful in Member States). The EU Directive also allows gender related aspects to be considered, but there is a notable omission of gender identity and intersex status as specific categories warranting protection.

However, understanding sexual orientation, gender identity and intersex status within the definition of a particular social group remains problematic. Jurisdictions move between identifying an ‘immutable’ and ‘visible’ characteristic (such as in the US) or characterising the ‘perception’ of a particular social group (such as the UK and Australia). Despite the different legal tests, cases across jurisdictions reveal a tendency for decision-makers to import Western stereotypes about what it means to be gay or lesbian. The UK case SW (Jamaica) v Secretary for the Home Department (2011) aptly illustrates that (homo)sexual identity is quantified through social or sexual acts. During an initial assessment, the lesbian applicant from Jamaica had her sexuality authenticated by reference to her relationship history with other women, her bodily aesthetic, and her participation in online social communities for same-sex attracted women. The ‘social perception’ of her sexuality was not anchored in cultural specificity but abstracted using a series of ethnocentric stereotypes. Fortunately, this parochial decision was overturned on appeal.

Legal scholars Catherine Dauvergne and Jenni Millbank argue that much of the jurisprudence in this area focuses upon assigning sexual identity through social interactions. Sexual orientation, however, is not reducible to a script of genital penetration, sexual object choice, or incidence of partners. Rather, it is an embodied identification or relational activity that is shaped within a specific historical and cultural context.

Moreover, Gender identity invokes a range of social expressions, psychological identifications, and bodily experiences that are not necessarily reducible to a person’s sex or sexuality. The commonly cited US case Hernandez-Montiel v Immigration and Naturalization Service (2000), for example, does not explicitly recognise ‘transgender’ or ‘transsexuality’ as a unique category. Instead, the court opted to define the PSG as a gendered sexual blend: ‘gay men with female sexual identities living in Mexico.’ The court noted ‘female sexual identity’ was so fundamental to the applicant’s sense of self that they should not be required to change it. Alternatively in 0805932 (2008), the Australian Refugee Review Tribunal (RRT) recognised a transgender claim from South Korea, noting the applicant (biologically male though taking estrogen hormones) exhibited a ‘blend’ of gender qualities (while identifying predominately as male). The decision in this case rendered gender identity within a spectrum of (hetero)sexual attraction, or specifically for the applicant, a ‘female sexual taste’ that was manifested in both his gender expression and choice of sexual partners. Subrogating the applicant’s gender identity or expression to a question of sexual orientation, however, eclipses the differential identities of gender minorities. Intersex people, who have chromosomal, hormonal or anatomical sex differences, are also excluded from both sexual orientation and gender identity labels.

Legal definitions of a ‘well-founded fear of persecution’ have evolved over time. LGBTIQ persecution does not always involve physical violence. Persecution can manifest in persisting psychological abuse, coerced concealment, the inability to subsist, or systemic discrimination that is legitimated/tolerated by the state. For several years, decision-makers in countries like Australia and the UK utilised a ‘discretion’ test to limit the claims of sexual minorities. The test required same-sex attracted persons to manage their sexual visibility in order to avoid persecution. Public manifestations of homosexuality were considered unduly provocative and it was not an ‘inherent characteristic’ of being homosexual that required protection. In the first appellate jurisprudence on the topic, justices McHugh and Kirby of the High Court of Australia argued that living in a state of fearful concealment could itself be found to be so oppressive as to constitute persecution. A person should not have to be discreet about their sexual identity and expression to avoid persecution.

While LGBTIQ refugees need not be discreet to avoid persecution, this principle has been troubled by the refusal to recognise laws criminalising homosexual activities as persecution per se. A recent decision of the European Court of Justice made it clear that decision-makers must examine the use, frequency and severity of legal sanctions in assessing if they constitute a serious violation of basic human rights. This reasoning is quite tenuous as it obscures how laws criminalising same-sex conduct entrench a climate of homophobic harassment and intimidation while coercing LGBTIQ people into lives of secrecy.

Legal tests aside, even presenting ‘plausible’ and ‘consistent’ testimony can be difficult for many LGBTIQ asylum seekers. Barrister S Chelvan argues that the connection between difference, stigma, shame and harm make disclosure about one’s sexual orientation or gender identity difficult for applicants who live beyond the strict prescriptions of a heterosexual life and/or binary sex or gender. Legal scholar Toni Johnson adds that adjudicators often fail to grasp the emotional ‘tells’ of oral testimony because they are refuse to imagine experiences of sexuality or gender identification that contests their pervasive stereotypes of what being ‘gay’ looks/sounds like. Instead of understanding the reasons for silence, decision-makers use it as a marker of dishonesty or evasiveness.

Whether it is in the context of administrative or judicial decision-making, limited understanding of LGBTIQ identities and experiences continues to produce inconsistent, stereotyped, and capricious decisions. The United Nations High Commissioner for Refugees urges countries to provide cultural sensitivity training to decision-makers. Specifically, states need to better contextualise the often domestic/private nature of sexual and gender related persecution and recognise the diversity of LGBTIQ experiences when defining the particular social group. Countries must also improve refugee status determinations by enabling greater access to legal and counseling support, pursue more culturally sensitive interviewing, and ensure the tailored use of country information reports when making assessments on the human rights situation of sexual and gender minorities. This is a small – but enormously important – step in better protecting LGBTIQ refugees fleeing persecution.

NB. See Radio National for a graphic illustration of this piece: Gay Enough.

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