Proof of Sexual Orientation – A Precondition for Asylum?

Introduction

In today’s heteronormative social order, homosexuality continues to be criminalised in several countries, and in many countries, it is the basis for discrimination and violence. This has caused many to flee their home countries in fear of ‘persecution’, leading to the UNHCR’s recognition of sexual orientation as a ground for seeking asylum. However, individuals seeking refugee status based on sexual orientation face several obstacles under the existing regime.

One of the biggest hurdles, as identified by the UNHCR’s Guidance Note, is the requirement of ‘proof’. In order to claim asylum, an applicant will ordinarily have to establish that they belong to the social group persecuted in their home country, i.e., in this case, they will have to prove their sexual orientation. Although proof of belonging to some social groups (such as a racial or religious group) is generally easy to obtain, the private nature of one’s sexuality makes it difficult to prove sexual orientation. LGBTQ applicants, in response to social pressures and/or criminal sanctions, are often compelled to live in secrecy, and therefore have limited proof of their LGBTQ identity. Producing witness statements, photographs and other documentary evidence of sexual orientation therefore becomes difficult. Against this backdrop, the UNHCR’s Note (paragraph 35) reiterates the principle of ‘self-identification’, affirming it as the sole indication of the applicant’s sexual orientation. In the absence of other proof, it thus requires the decision-maker to rely on the applicant’s testimony alone.

However, states have regularly used ‘scientific’ tests to ‘prove’ an applicant’s sexual orientation. Such tests are usually intrusive, unreliable, and an affront to basic rights. In this article, we argue that such tests – whether scientific or psychological – violate the basic human rights enshrined in international instruments.

Evidence-Based Tests to Prove Sexual Orientation

In countries such as Hungary and the Slovak Republic, asylum seekers are required to undergo medical and/or psychological tests, based on which experts would affirm or deny their sexual orientation. This raises several concerns when viewed from a rights-based lens.

First, such tests further pathologise same-sex attraction, undoing strides made by the queer movement towards de-pathologising non-normative sexualities by discrediting the discourse around medical regulation of sexual identities.

Second, such tests, as illustrated below, are not fool-proof. They cause the rejection of genuine claims due to inaccurate assessments. Consequently, they jeopardise the right to non-refoulement, a cornerstone of refugee law. This right guarantees that states will not send asylum seekers back to their home countries where they fear persecution. This right does not require formal recognition of their status or grant of asylum and accrues to a refugee upon fulfilling the criteria established under the Refugee Convention. Wrongfully rejecting claims by using inaccurate tests thus imperils the rights of all those legitimately seeking refuge.

Third, they are inconsistent with international human rights law. They violate the right to legal recognition and self-determination under Principle 3 of the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity. They also infringe Principle 18 that prohibits the use of forced psychological tests for the purpose of ascertaining sexual orientation or gender identity. Their administration also contravenes several other rights, including the right to bodily autonomy, to human dignity and privacy. Against this backdrop, several of such tests have been declared as violations of human rights.

The Different Tests Used

These ‘scientific’ tests are varied, and have been used across the globe, despite repeated declarations of their inconsistencies with international human rights laws.

For instance, the practice of using anal tests to determine homosexuality has been condemned by the United Nations as violating the Convention Against Torture, and by the Special Rapporteur on torture, as being unscientific as well as violating basic human rights.

Another test is plethysmography, where an instrument measures changes in the size of genital organs to determine sexual arousal. Aside from being rejected several times by US and Canadian courts as being unreliable, it is seen as a violation of the right to privacy, right to protection from medical abuses, as well as the right to be free from degrading treatment.

Perhaps in recognition of the more apparent concerns raised by bodily-tests, states have now began increasingly relying on psychological tests (such as ‘draw a man in the rain’ or ‘inkblot’ tests). However, these tests too raise similar concerns.

Hungary, for instance, until recently subjected applicants to such psychological tests. In 2014, the ECJ held that although authorities can verify the asylum-seeker’s claim, they could not mandate or even accept evidence that violated the privacy and dignity of the applicant. In January 2018, reiterating its earlier decision, the ECJ ruled  that asylum seekers cannot be subjected to tests which seek to determine their sexual orientation. In this case, as per the expert opinion based on these tests, the asylum seeker’s assertion of being homosexual was falsified. Consequently, despite there being no contradictions in his narrative, the Hungarian authorities refused to grant him asylum.

The ECJ held that, a decision to not grant asylum cannot be based solely on an expert’s report. Further, if States take recourse to expert reports as supplementary means, such procedures must be consistent with guarantees under the Charter on Fundamental Rights of the European Union. Additionally, it noted that even if not mandatory, considering the precarious position of the asylum seeker, consent to such a test would not be free.

In both cases, the ECJ reaffirmed guarantees under international human rights law.

This international discourse yields two conclusions. First, requiring psychological test-based proof of sexual orientation stands in direct opposition to the person’s right to private life. Second, such an expert opinion cannot conclusively establish one’s sexual orientation.

In this context, it is clear that the authorities must look at the general credibility of the asylum-seeker, rather than relying on a seemingly objective measure of testing sexual orientation. Therefore, the over-all plausibility of the seeker’s case must weigh heavier against expert opinion based on such tests. Until a reliable method of testing the veracity of the claims is found, it is essential that the asylum-seekers not be subjected to such psychological tests. Instead, in the absence of documentary evidence, the testimony of the asylum seeker, if without contradictions, must be sufficient to adjudge their claims.

Conclusion 

Refugee law is premised on the protection of human rights and the UN Refugee Convention is based on principles of non-discrimination. It is therefore antithetical if fundamental freedoms and rights are violated in the grant of refugee status itself. Understandably, the need to prove one’s membership in a particular social group poses a peculiar difficulty in cases involving sexual orientation. However, using tests to determine sexual orientation continues the tradition of using a clinical lens through which to perceive homosexuality. Although today most countries have stopped using anal or plethysmographic tests, many countries continue to use psychological tests which carry a trace of pathologisation.

The UNHCR’s recommendation affirming self-declaration as well as the ECJ’s decision to rely on the testimony of the applicant over such test-based expert opinion, are in sync with the struggle of the global queer movement. The political realities and the socio-economic handicap of granting states has popularised the discourse of misuse. However, the right to self-declaration of sexual orientation and gender identity is a basic human right. Ideally, States must adopt this framework and rely solely on the applicant’s testimony. At the least, until such time as deliberations lead to a rights-friendly method to make this determination, the grant of refugee status cannot be conditioned upon such inaccurate and denigrating tests.