Blog post by Kitti Balas, a graduate of the MA programme in Refugee Protection and Forced Migration Studies at the University of London.
It is recognised that asylum seekers face difficult challenges in submitting evidence to support their sexual orientation, namely whether they have a credible fear of persecution on grounds of membership of a particular social group. This might be because they’re rarely able or have time to obtain any documentary proof upon fleeing their home countries and certification of someone’s sexual orientation is not always possible.
The primary (and often the only) source of evidence in sexual orientation-based claims is the applicant’s own testimony. So demanding ‘proof’ of sexual orientation in the refugee status determination process leaves life-changing decisions up to a range of non-measurable, non-controllable variables.
Persecution on account of someone’s sexual orientation is not a new phenomenon. However, with its understanding being largely inconsistent in asylum decisions, its application remains inconsistent too. In contrast to claims where applicants are able to substantiate their testimonies with evidence or produce verifiable and easily accessible answers, lesbian, gay and bisexual applicants can hardly ever provide verifiable evidence with theirs. Proving sexual orientation is by default a troubling barometer with which to grant protection. Questions about one’s sexuality can be offensive and humiliating – particularly when individuals come from countries where ‘non’-heterosexuality is criminalised, penalised or judged as a sin that needs correcting.
The first stages proposed by Lord Hope in the case law HJ Iran to evaluate sexual orientation-based claims represent the establishment of whether the applicant is ‘actually’ gay (as in the case in question) or suspected of being so. When analysing 13 asylum cases in the Netherlands, Louis Middelkoop, PhD candidate at Vrije Universiteit Amsterdam, interviewed a decision-maker of the country’s Immigration and Naturalisation Service. According to the official, for a person to be considered gay for the purpose of the Refugee Convention, they must experience sexual or romantic feelings towards members of the same sex. The reason for this, he stressed, is that protection is granted “for who they are, not for what they do”.
In other words, what is commonly understood as homosexual behaviour—engaging in same-sex activities without experiencing feelings of attraction—is insufficient proof. At this point, the applicant must explain what gay means to them. For the credibility of their narrative, details of becoming aware of such feelings, a ‘coming out’ phase or starting a relationship are ‘expected’. However, as UNHCR notes, the differences of how people realise and come to experience their sexuality should always have the right of way.
Self-identification is not self-explanatory
Self-identification is the act of seeing one’s sexual orientation as part of their personal identity. It doesn’t have to be communicated to others, nor lived in a prescribed manner. People might realise their sexual and gender expressions at different stages in life and such self-realisations and changes in gender articulations may vary with social, cultural and age-related determinants.
Self-identification is a markedly complex matter, which isn’t dependent on an asylum interview date. At the time of their interview, claimants could be unsure of their identity. They might yet come to terms with who they are, which can precipitate contradictory statements or feelings or complete negation. In the case of Kwame, an Angolan reapplying for asylum, the court stated that an applicant should mention their sexual orientation when they become conscious of it. Here, homosexuality is seen as a realisation of experiences even if, initially, the claimant did not “admit” it.
The entangled journey of gender expression confirms that self-identification doesn’t follow the beeline model developed by Vivienne Cass in 1979.The Cass identity model places self-identification on a crystalline trajectory – moving from confusion, comparison, tolerance to acceptance and pride. However, as Millbank and other academics noted, this model is culturally blind. It blatantly imposes a fixed pattern that everyone, regardless of culture or knowledge of notions of sexual orientation, will live through in their identity development.
Reality, however, invalidates such labels. Individuals may be occasionally attracted to people of the same sex, even engage in sexual relations with them, all the while identifying as heterosexual.Alternatively, people may be conflicted between their values and feelings – it’s not uncommon for denial, repression or dissociation to take over in an attempt to alleviate mixed emotions. Bisexual individuals, for instance, often define their sexual orientation as ‘fluid’ or ‘flexible’. People choose to express their chosen gender only when they feel ready and only with people whom they feel safe with. Adjudicators are rarely part of that group – not to forget that previous negative interactions with authorities can severely impact how individuals express themselves in front of case officers. Is that fear an indication that their ‘claimed’ sexual orientation is false? Some case officers interpret the trepidation of an applicant as a signal of false testimony which highly impacts case outcomes.
Thus, intrusive interview questions are demeaning and violate applicants’ right to dignity and privacy.This reminds of the case of a Moroccan lesbian woman told to narrate in detail how her rape happened and how she felt having intercourse with a man. Or that of a gay man from Benin who, when the adjudicate asked why he refused to have sexual contacts in the past, he said this information is private. His asylum claim was thereupon rejected.
Weak or incorrect understandings of self-identification can create substantial issues in an asylum context, when searching for proof of sexual orientation. A 2021 qualitative study of 60 rejected LGB+ claims in Greece shows that in 28 cases, there were stereotyped notions about LGB+ communities, such as not attending gay parades. In 39 cases, claimants weren’t able to elaborate when and how they realised their sexual orientation and how this shaped their identity (feelings of ‘being different’ were sought out). In 7 cases, applicants didn’t understand what decision-makers meant by describing one’s self-realisation.
Additionally, individuals may not self-identity with any of the LGBTI terminologies at all. Men having sex with men might not see themselves as gay; bisexual individuals may identify as gay, lesbian or heterosexual.Contrarily, some may self-classify as gay without ever engaging in same-sex relations.In India and Thailand, lesbian women consider themselves women who love women, not lesbian. Additionally, cultural stigma, internalised homophobia or different perceptions of the definition of ‘gay’ can lead people to never identify as such. Amir, who claimed asylum based on persecution on account of his sexual orientation, was living with the same man for a long time, yet he denied being gay.Middelkoop’s study also found that people have been refused asylum because of a failure to self-identify as gay, as in Amir’s case. With so many elements impacting self-identification, it’s crucial for asylum decisions not to be based on frivolous interpretations of LGBTI experiences or on “erroneous, culturally inappropriate or stereotypical assumptions”.
The Difference, Stigma, Shame and Harm (DSSH) model is one frequently used by Cyprus, Finland, Poland and the UK authorities in assessing sexual orientation-based asylum claims.
UNHCR is also thought to have endorsed it, even though this model is criticised for normalising and homogenising expressions and meanings of sexual identity, encouraging a linear process of sexual realisation. For example, the ‘Difference’ characteristic, apart from being dehumanising, shouldn’t be regarded as a universal feature in all narratives. The absence of ‘Shame’ can undermine applicants’ credibility in proving their sexual orientation too – as one UK NGO volunteer notes when discussing claimants who suffered oppression from their families but not feelings of shame: “[t]hey are in their 20s; they have been here for 4 or 5 years; Pakistani culture is changing; with satellite TV you can watch telly from all over the world. Why should they feel shame?” Any evidence of these 4 characteristics ignores the overlap of sexuality with gender, race, class and aims to intensify the gap between the progressive West and other ‘regressive’ countries of origin.
Standardising sexual orientation
Relying on stereotypes or assumptions is damaging and misleading. These must not form the basis for rejecting credibility. A 2013 report by the UK Lesbian and Gay Immigration Group reveals a culture of disbelief within the country’s Home Office – with a high proportion of LGBTI claims being refused because their applicants couldn’t prove their sexual orientation. As the primary reason for ‘refusing to believe’, the report points at the decision-makers’ misconceptions about sexual identity and stereotyped conflations about relationships between women and women, men and men. Among the most common themes for refusal include requirements for sexual promiscuity for gay men in particular. In other cases, rejection is based on something trivial: “[the claimant] described his most recent Valentine’s card as pink; the partner who sent it [to him] said it was red”.
Assumptions of ‘inner struggle’ mean that people are expected to behave in an express manner that involves going through a stage of confusion before coming to terms with their sexuality. This is especially problematic for transgender people, who might have troubles articulating an identity that fits the ‘coming out’ phase due to cultural differences, or a struggle to form identities under conditions of erasure. As such, people can be refused protection because they don’t look or act in ways that fit the case worker’s notions of a trans individual.
Expectations of adopting a certain lifestyle are worrisome too. Applicants might wish to keep their private life private and not live their sexual orientation openly. Courts could also expect them to dress in a particular way. When Jeune in Jeune v. US Attorney General described himself as a gay man who dresses as a woman, his claim was rejected on the account that this doesn’t necessarily mean he is also a transgender individual.
The absence of sexual relations, past persecution or ‘evidence’ of a heterosexual life aren’t proof that people don’t have the sexual orientation they claim to. Despite this, it’s not uncommon for a lesbian woman from Cameroon to have her claim rejected because she is 39 and a mother of 3 kids.
Moreover, UNHCR acknowledges that it’s likely for lesbian asylum seekers not to have experienced past persecution as they never had relationships that would put them in danger. Nicole LaViolette, whose work is used as a source in Canada’s asylum decision-making, argues that what really matters is the perception of the applicant in their home country and the pervasive societal rejection of their orientation or identity.
A 2021 study on how to improve sexual orientation asylum claims found that case officers in Italy tend to look for specific elements in people’s testimonies that fit a plausible, Western story: “homosexuality must be the White one, which we’ve always known, the one we’ve always seen before our eyes or that we’ve read about, maybe we don’t know it up close, but we can’t think of it the same way as a Black guy who maybe doesn’t think of himself as a homosexual, cannot even say the word homosexual because maybe he has years of internalised homophobia and it is difficult for him to understand and express it.”
Excessive focus on people’s feelings and articulations of self-realisation are also wrong. A claimant’s decision letter from the UK’s Home Office reads: “[it] is considered that you would have some trouble coming to terms with your sexuality given the environment you were brought up in […] however you make no mention of this and simply state that you felt thrilled.”
Assumptions of defined behaviours require applicants to adjust potentially traumatic experiences into decision-makers’ presumed narratives. Inspecting asylum decisions in the Netherlands, Jansen criticises the expectancy of interviewers to hear of self-acceptance stories, inner struggles, especially where religion is concerned and prioritisation of own’s feelings: “the question ‘What did it do to you when you discovered you were gay/lesbian/bisexual?’ is an open-ended question, but the files clearly show that many asylum seekers do not understand this question.” By the same token, many claimants may choose to suppress any characteristics of their identity for fear of persecution. As in HJ Iran, individuals might be ashamed or scared to reveal their sexual orientation to their families, all the more so if their culture, tradition and authorities are prone to condemn it.
With regard to proof of medical treatments for transgender persons, this shouldn’t be mistaken with proof of identity status. Transitioning from one gender to another entails a complex exercise – and it’s not necessarily dependent on surgery or efforts to outward appearances that match an internal identity. Decision-makers must not overemphasise sex-reassignment surgeries when looking for evidence. Even so, providing such proof doesn’t ‘guarantee’ a successful asylum application: in Talipov v. Holder, the court rejected the claim of a transgender individual, even though he began hormone therapy, uses make-up, wears women’s clothes and lives openly as a transgender woman. The judge considered that the applicant could have assumed a woman’s habit and presentation any time.
However, Berg also suggests that applicants from a transgender group are deemed more credible when their physical appearance conforms to a visual typology – and their narratives conform to accepted Western tropes of gender dysphoria. Interviewers appear to be satisfied when claimants show proof of their medical history, physically express their chosen gender or describe their new gender coherently.
Equally wrong and controversial is to ask individuals to submit self-videos with sexual content, medical or psychological tests. Practices that confine sexual identity to an environment of performing particular sexual acts or forms of physical conduct are restrictive, shallow and invasive of people’s right to privacy and dignity.
What is striking is that decision-makers will look for ‘proof’ in non-verbal expressions too, such as sighing, being evasive or taking long pauses before answering. In one of the claims analysed by Middelkoop, the applicant simply couldn’t give more details when repeatedly asked about his and his partner’s position in bed the moment they were discovered by his father. His claim was (initially) rejected, as the case officer didn’t take into account the possibility of the interviewee being embarrassed or ashamed.
Frequently enough, individuals are also expected to describe aspects considered commonly related to the ‘culture’ of their ‘group’. For instance, information on gay bars, gay celebrities or movies or literature on homosexuality. By way of example, when relating the case of a lesbian claimant from Mongolia, this case officer was fairly dismissive: “I have doubts as to whether their relationship is a lesbian relationship as the evidence as to how they first met and their lack of involvement in the lesbian community is of concern.” Of course, such public manifestations may be something that applicants agree with, don’t have access to or are simply not interested in. Regardless of the reason, inferring that everybody is longing to live their sexuality publicly is stereotypical.
The Country of Origin Information can misinform
In many countries, the topic of sexuality is considered taboo, an offence or even a set of behaviours rather than an identity (for example homosexual individuals in Nigeria are hausa men). In other cases, gender non-conformities are punished and assumed to be gay, even if people are transgender, such as in Malaysia. In various places, ‘men who have sex with men’ is a descriptor for heterosexual men having sex with men because this is the only sexual activity available.
There are cultures where notions of transphobia or transgender identity don’t even exist. If decision-makers rely on them, there’s the risk of dismissing claims on the account that claimants don’t face persecution in their country. Home country situations act as clues for explaining the reluctance in opening up or asking for protection. Criminal laws that prohibit same-sex relations will lead to an oppressive life for these communities, even when laws are rarely enforced. Applicants can still be blackmailed or extorted, hence keeping quiet or not seeking protection from the authorities is understandable.
Generally, accurate Country of Origin Information on how LGBTI groups are treated worldwide is lacking. As LaViolette notes, it’s still difficult to obtain independent human rights documentation in many parts of the world. For example, those born with disorders of sex development might not be registered at birth. Governments could be using different terms to make sense of the violence against such groups: “correcting”, “curing” or “treating”. In Western states, the violence against transgender people is underreported or reported under other claims, therefore they remain invisible victims.
Furthermore, lesbian women are less visible for the government, hence they’re more likely to face greater difficulties than, for example, gay men, in ‘proving’ their sexual orientation. Their non-existent legal relationship with the state is an obstacle in showing persecution at the hands of the authorities. The Matter of Kasinga was ground-breaking in this sense because it looked at the persecutory act as part of an encompassing pattern of oppression of women: “ironically, the more repressive a country is towards lesbianism, the more difficult it may be for an applicant to prove her claim.”
By looking at a claim made by a Chinese woman fleeing persecution based on her sexual orientation, we find that this was rejected on the grounds that she never had an open relationship with a woman. When she said she didn’t feel free to do so in China and feared the consequences, the decision-maker suggested she could have done so by being discreet in her behaviour. Even if homosexual individuals aren’t openly persecuted in their country, this doesn’t mean they aren’t experiencing persecution. In Ivanov v. Secretary of State, the adjudicator found the account of a gay asylum seeker from Moldova consistent to this point, calling out deep-rooted feelings against homosexuality across the country and police beatings.
The approach decision-makers take in reviewing sexual orientation-based claims must be culturally sensitive, humane and ethical. In the end, people are at risk of harm in their home countries because their societies don’t accept or understand their identity. They shouldn’t be refused protection for the same prototypical reasons.
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