Papers

Fleeing Homophobia Conference

VU University Amsterdam, 5 and 6 September 2011

You Are Not Gay Enough; Proving Sexual Orientation and Gender Identity within the Asylum Regime; the Credibility Challenge In Varying Cultural Expressions of Sex and Gender
Eric Gitari

Abstract In interpreting the 1951 Geneva Convention and its 1967 Protocol to protect LGBT refugees, the UNHCR has argued through its Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity that asylum authorities need to view being homosexual in any country where homosexual activity is outlawed as having reasonable grounds for fearing persecution and granting asylum. However, according to the interpretation and practice of most EU asylum countries, the applicants sexual orientation alone is not sufficient grounds for granting asylum. Moreover, since sexual orientation is, in itself, very difficult for most asylum seekers to prove asylum seekers must prove their sexual orientation and then proceed to show persecution for that orientation or receipt of at least targeted specific threats in order to have reasonable grounds for fearing such persecution.

How do you prove sexual orientation of an asylum seeker? Is it by asking intrusive questions, testing their knowledge of a universal gay culture, or is it something you identify within their covet behavioral traits? This paper seeks to demonstrate how cultural variations in expressions of sexual orientation and gender identity by LGBTI asylum seekers from Africa often create credibility hurdles during resettlement case processing by receiving countries especially in the
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European Union whose asylum agencies often mirror and expect a universal expression of sexuality and gender.

The paper will analyze some of the recent EU asylum decisions involving African LGBT asylum with a view to uncovering in particular the subjective variables at play. The article examines how sexual orientation can be proven without equating visibility of ones sexuality with the potential for anti homosexual persecution. It will then conclude by laying emphasis that asylum regime and practice in the EU needs to protect LGBT persons on the basis of their immutable sexual orientation and gender identity and must preclude the culturally flawed universal performance-as-identity model.

Contextual Background

38 of Africas 53 countries have legislation that deems homosexuality to be illegal with countries such as Sudan, Somalia and some states in Nigeria punishing homosexual acts by death. 1 There is no African country that has taken steps to decriminalize homosexual conduct to date, in the inverse, more than 50% of African states have taken political and legal steps to legislate stiffer penalties against homosexuality with some even introducing criminalization legislation where none existed. 2 New legislation was passed in Burundi in 2009, to criminalise same sex relations for the first time in the countrys history3

These legislative sanctions have occasioned human rights violations across Africa characterized by harassment, humiliation, extortion, arbitrary arrests, judicial violence imprisonment, torture, hate crimes and honour killing on the grounds of sexual orientation and gender identity. 4 Many LGBTI refugees fleeing such situations find no relief as situations in countries of origin often
Daniel O. (2010) State Sponsored Homophobia: An ILGA report available at http://old.ilga.org/Statehomophobia/ILGA_State_Sponsored_Homophobia_2010.pdf (last accessed on 5 January 2011) 2 ibid 3 Human Rights Watch (2009, July), Forbidden: institutionalizing discrimination against gays and lesbians in Burundi. 4 ibid
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mirror those of asylum. In many refugee hosting African states, they may not be granted refugee status based on persecution on account of their sexual orientation and gender identity, 5 with seeking asylum in a safer third country being their only recourse. 6 In the recent past, an increasing number of LGBTI-identified people are unwilling to endure life in this state of fear and have fled this persecution to seek asylum in foreign states.

This review looks more closely at Denmark, Norway, Sweden, Australia, Belgium, Canada, , Finland, France, Germany, Ireland, Italy, the Netherlands, New Zealand, the US and the United Kingdom.. All these receive a substantial number of asylum claims each year and known for their relatively liberal policies towards sexual minorities 7. It has however been noted that a liberal policy towards homosexuals does not equate a liberal policy towards homosexual asylum seekers. Asylum rights for those persecuted because of their sexual orientation do not exist in a vacuum, but are embedded in the countrys larger asylum policy and practice 8

Asylum claims based on persecution related to a lesbian, gay, bisexual, or transgender individual's sexual orientation are particularly difficult to file, argue, and win even with substantial evidence of persecution and ill-treatment. Although the procedures for the adjudication and determination of the refugee status in the EU are regulated by international legal instruments 9 as well as by specific European and national legislation 10, a recent decision in
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As an example, Israel refuses as a matter of policy to recognize claims for asylum based on gender, as its sees the issue purely as a social and cultural matter perpetrated by non-state actors (ORAM 2011). 6 For further information please see Kagan, M and Ben-dor, A. (2008). Nowhere To Return: Gay Palestinian Asylum Seekers in Israel. The Buchman Law Faculty, Tel Aviv University. 7 See (http://www.nyidanmark.dk/da-dk/Statistik/SearchStatistics.htm?searchtype=statistics; http://www.migrationsverket.se/swedish/statistik/per_manad.html; http://www.udi.no/templates/Statistikk.aspx?id=9990) last accessed August 2,2011 8 See Peter Hojem, Fleeing for love: asylum seekers and sexual orientation in Scandinavia, UNHCR 2009 9 The 1951 Convention and 1967 Protocol Relating to the Status of Refugees. 10 The European Convention on Human Rights, Article 3; European Union Refugee Qualification Directive. The Refugee Qualifications Directive for instance provides that where aspects of an asylum claimants statements are not supported by documentary or other evidence, those aspects will not need confirmation when all the following conditions are met: (i) the applicant has made a genuine effort to substantiate his application; (ii) all material factors at the appellant.s disposal have been submitted and a satisfactory explanation regarding any lack of other relevant material has been given; (iii) the applicant.s statements have been found to be coherent and plausible and do not run counter to the available specific and general information relevant to the applicant.s case; (iv) the applicant has made an asylum or human rights claim at the earliest possible time, unless the applicant can

a UK supreme court now mirrors the practice in most EU states. The Supreme Court has now established the test in the case of HJ (Iran) & HT (Cameroon) v SSHD [2010] UKSC which test should be applied when assessing a claim based on fear of persecution because of the applicants sexual orientation. As such, the following steps need to be considered: a) Is the applicant gay or someone who would be treated as gay by potential persecutors in the country of origin? b) If yes, would gay people who live openly be liable to persecution in that country of origin? c) How would the applicant behave on return? If the applicant would live openly and be exposed to a real risk of persecution, he has a well-founded fear of persecution even if he could avoid the risk by living discreetly. d) If the applicant would live discreetly, why would he live discreetly? If the applicant would live discreetly because he wanted to do so, or because of social pressures (e.g. not wanting to distress his parents or embarrass his friends) then he is not a refugee. But if a material reason for living discreetly would be the fear of persecution that would follow if he lived openly, then he is a refugee? It has been acknowledged that, it is now in question (a) above that most LGBT asylum-seekers face particular difficulties in establishing their claims and obtaining a positive assessment of their credibility11. This requirement by the Supreme Court has been criticized as a simple development of grounds of refusal from go home and be discreet to prove that you are gay in order to refuse asylum and carry on removing gay people 12. LGBT asylum advocates have claimed that the use of such grounds for rejection is merely an attempt by homophobic officials

demonstrate good reason for not having done so; and (v) the general credibility of the applicant has been established. See also Kasolo v Secretary of State for the Home Department [UK,1996]. 11 See, particularly with regard to women, the Canadian Guidelines .Women Refugee Claimants fearing Gender-related Persecution., Immigration and Refugee Board (IRB), 1993 (updated in 2003); and Audrey Macklin, .Refugee Women and the Imperative of Categories., Human Rights Quarterly 17/2 (1995) 213277, 248 ff. 12 See Paul Canning, Nigerian gay man Uche Nanbuife faces deportation from Britain available at http://madikazemi.blogspot.com/2010/11/action-alert-nigerian-gay-man-uche.html (last accessed August 3, 2011)

to block LGBT asylum. This paper will employ itself to satisfying requirement number one-that the applicant is gay.

In proving sexual orientation, more often than not, international legal instruments and / or principles and guidance notes such as those of the UNHCR on LGBT refugee claims, are of little relevance for a decision-making process that due to the very nature of the claims has to rely heavily on credibility assessments - of ones individuality or of ones collective belonging.

In most cases, then, the only proof of the sexual orientation that LGBT asylum claimants have is their own story. In the vacuity of objective (factual and documentary) verification, the credibility of their story becomes a disputed field in the process of adjudication of asylum. Consequently, the assessment of credibility is inextricably linked to all other elements relevant to the determination of asylum claims 13.

Assessment of Credibility; the Substantive Hurdles

A brief analysis of LGBT asylum case law facts indicate the following to be some of the common threads that affect the credibility of most LGBT asylum case when proving sexual orientation

Immigration officials may not understand cultural norms in LGBT immigrants' countries of origin. For example, officials may question a woman's lesbian identity if she was married to a man (even if it was for her own survival), has children, or has had sex with men (even if it was not sex, but rape). Officials may assume that LGBT immigrants should conform to stereotypes of white, proud European LGBT culture in order to prove their sexual orientation.

Further, Most LGBT asylum seekers, especially from Africa, may fear outing themselves to government officials due to past experiences of mistrust of government agents. Many asylum seekers come from countries where discrimination against LGBT is permitted or perpetuated by
See Seeking Refuge: Caught between bureaucracy, lawyers and public indifference? Centre of African Studies, SOAS, University of London, April 16-17 2009
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the state itself and might never have been visibly expressed their sexuality. Most of them have learnt that covering ones sexual orientation or gender identity is a natural response to homophobic and transphobic persecution. Thus, they may share incomplete stories to account for their claim. This visibility requirement of their sexuality punishes asylum applicants for exhibiting a symptom of persecution and is therefore inconsistent with the fear-based standard of asylum. Second, the visibility requirement assumes that conspicuous LGBTI persons have fundamentally different identities than inconspicuous LGBTI persons, such that they constitute a different social group for asylum purposes. This belief is grounded in a performance-asidentity model, suggesting that identity is determined by behavior rather than by immutable characteristics. Asylum and protection of LGBTI persons under international law is on the basis of their immutable sexual orientation and gender identity and precludes the culturally flawed universal performance-as-identity model which is subjective based on the adjudicators level of exposure and biases. Some LGBT may have problems admitting to their sexual orientation, especially in the humiliating context of telling strangers what they had suffered. When most of them apply for asylum within neighboring states in Africa, they try to obtain asylum on other grounds, which later creates credibility hurdles during case assessment and brings in an extra burden of proof.

Additionally, most alleged LGBT asylum applicants take long to apply for asylum instead of applying relatively soon after arrival. In some cases we have dealt with in East Africa, some applicants confine themselves to their own, straight ethnic refugee communities who are essentially the persecutors in the countries of origin and have little or no knowledge of gay life in the country of asylum thus raising more questions on their LGBT identity.

Transgender applicants may face assumptions about how they should be, act or look, and have their case denied if immigration officials think their gender transition was too successful (implying that they should be able to hide their trans identity) or if they are not transitioned enough (implying that they may not be trans at all).

Transgender people may face assumptions that they must have had surgery or be on hormones in order to prove that they are transgender. Sex reassignment surgery, as well as hormone replacement therapy, are often cost prohibitive or completely unavailable both in immigrants' countries of origin as well as in many communities in the EU. Also, not all transgender people choose to take hormones or go through surgery.

The Assessment of Credibility: Procedural Issues

In procedure, asylum seekers narrate their understandings of their sexuality and experiences, but refugee articulations must be translated into the official legal code and legitimized by objective agents of knowledge (i.e. doctors, psychiatrists, and scientists)14.It has been argued that the courts proclivity for documents and expert testimony from professionals demonstrates the legal systems privileging of objective rather than subjective discourse 15. Hence, lesbian and gay testimonies become pieces of discourse that can either be legitimized by authorities of knowledge and power, or be rejected as worthless utterings that certainly will not grant asylum to lesbians and gays16.

Therefore, an uninformed misunderstanding concerning homosexual identities, behaviors, and issues based on narrow, stereotypical conceptions of homosexuality complicate the process of applying for asylum, because in many instances, lesbians and gays constructions of their identities and sexualities do not match the preconceived notions court actors carry about homosexuality. Limited definition of homosexuality based on false cultural universalisms often fails to consider the fluidity of sexuality, the actual lived experiences of claimants in their home countries, and the ways in which homosexual identity and behavior may differ in other countries than the EU due to strong (and often violent) state sanctions enacted against lesbians
See La Viollete, Nicole: Proving a Well-Founded Fear: The Evidentiary Burden in Refugee Claims Based on Sexual Orientation. In Asylum Based on Sexual Orientation: A Resource Guide. Sydney Levy, ed. San Francisco: International Gay and Lesbian Human Rights Commission and Lambda Legal Defense and Education Fund, 1996 15 See Ryan Carlino, Objectivity, Authority, and Truth: Confirming a Homosexual Identity in Lesbian and Gay Fights for Asylum
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ibid

and gays. Once a claimant identifies as lesbian or gay, the courts expect the claimants subsequent testimony and evidence to agree with the courts conceptions of homosexuality, otherwise the legitimacy of the testimony is questioned 17.

Scholars have termed such judicial evidential procedures as subjugating in nature citing that such legal processes dis-empower outsiders by rejecting their stories that are based on backgrounds, worldview, and experiences not understood by judges and jurors18 The fact that sexual identities and expressions of homosexuality differ cross-culturally confounds the judicial process of acquiring knowledge and granting asylum. Western conceptions of homosexuality and same-sex behaviors largely shape how courts conceive of homosexuality which delimits the space in which claimants constructions of their sexual orientations can occur 19. Argumentatively, this then forces lesbians and gays from outside the EU in a position to either model their experience to meet the courts expectations or rely on authoritative professionals to interpret and translate claimants discourses. There are many accounts where the courts solicit the expert knowledge of the scientific and medical communities which reinforce the antiquated conceptions of homosexuality espoused by the courts. Although courts and agents of professional knowledge can be sympathetic to the horrible descriptions of violence provided by claimants, ultimately judges most frequently reaffirm their commitment to the state and to the superior authorities of higher courts rather than challenging the status quo 20. Consequently,, the refugee tribunals propagate anti-gay sentiment and homophobic stereotypes, support systems of power and dominance that breed inequality, and castigate lesbian and gay claimants for their non-normative sexualities and for their lack of knowledge of the legal system 21.

Conclusion

17 18

Ibid See Jeffry, Laura Historical Narrative and Legal Evidence: Judging Chagossians High Court Testimonies. Political and Legal Anthropolgy Journal 29(2):228-253, 2006 19 Supra note 17 20 Ibid note 18 21 Supra note 16

The utility of individual testimonies and giving them the benefit of doubt cannot be gain said. It has been supplied by anthropologists that individuals testimonies give voice to collective experiences of suffering and death that were sanctioned by a repressive state 22. While such a system might be open to abuse by asylum seekers who want to manipulate the system, Unfortunately, the UNHCR Guidance Note does not provide decision-makers with any tools to facilitate the credibility assessment in sexual orientation claims other than a quote from the UNHCR Handbook noting that if the applicants account appears credible, he [or she] should, unless there are good reasons to the contrary, be given the benefit of the doubt. 23

Sexual orientation claims depend upon the presentation of a very internal form of self identity. 24Whether this presentation of self then leads to a successful claim depends entirely on the question whether or not the decision-maker finds it to be credible which, in turn, much depends on his or her knowledge about issues of sexuality and possible biases they might have. Asylum workers are advised to use several tools to assist them in their decision-making, including the use of corroborative evidence and an assessment of demeanour, consistency and plausibility. However, the golden rule of benefit of doubt runs across all these tools. This rule will redress situations where asylum procedures valorize objective constitutions of homosexual identities over subjective self-constructions, thereby placing the fates of lesbians and gays under the control of hegemonic institutions of power and discrimination 25.

22

See French, Brigittine M; Technologies of Telling: Discourse, Transparency, and Erasure in Guatemalan Truth

Commission Testimony. Journal of Human Rights 8:92-109. 2009 UNHCR Handbook above n. 93, para. 196, which reads as follows: It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support 24 Supra note 14 25 See McGhee, Derek Accessing Homosexuality: Truth, Evidence and the Legal Practices for Determining Refugee StatusThe Case of Ioan Vraciu. Body & Society 6(1):29-50. 2000
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Western conceptualizations of homosexuality combined with a privileging of expert authoritative, objective truth over subjective narrations of knowledge and personal accounts often create hurdles to accessing asylum. Therefore, such a construct in the asylum regime not only sanctions and legitimizes the persecution of gays and lesbians in foreign countries, but reveals the invisible structures of inequality and state violence that leave lesbians and gays powerless in an inherently prejudiced, homophobic institution.

At any rate, it should be indisputable that these dimensions of the claims of many asylumseekers need to be treated in a much more sensible and adequate way, resorting to more sophisticated, diverse and appropriate cultural and social notions. While positive jurisprudence is still being developed within the asylum regime, regard must be had on the immutability requirement, a focus on that which is fundamentally and culturally constantan applicants core homosexual identity with emphasis to the rule on giving the applicant a benefit of doubt. 26

Select Bibliography

i.

Jenni Millbank, '"The Ring of Truth": A Case Study of Credibility Assessment in Particular Social Group Refugee Determinations' 21 International Journal of Refugee Law 1 (2009)

ii.

McGhee, Derek Accessing Homosexuality: Truth, Evidence and the Legal Practices for Determining Refugee StatusThe Case of Ioan Vraciu. Body & Society 6(1):2950. 2000

iii.

European Council on Refugees and Exiles, ELENA Research Paper on Sexual Orientation as a Ground for Recognition of Refugee Status

iv. v.

Immigration Equality, LGBT/HIV Asylum Manual Marc Epprecht, Heterosexual Africa? The History of an Idea from the Age of Exploration to the Age of AIDS, Athens OH: Ohio University Press (2008)

49. Hernandez-Montiel v. INS, 225 F.3d 1084, 1089 (9th Cir. 2000); see also HUMAN RIGHTS WATCH, supra note 31, at 97 (Police single out suspects on the basis of a battery of stereotypes: . . . ways of dressing, walking, talking . . . . [T]he law helps create something like a sexual identity. (internal quotation marks omitted)).

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vi.

Joe Landau, 'Soft Immutability and "Imputed Gay Identity": Recent Developments in Transgender and Sexual-Orientation-Based Asylum Law' 32 Fordham Urban Law Journal (2005) La Viollete, Nicole Proving a Well-Founded Fear: The Evidentiary Burden in Refugee Claims Based on Sexual Orientation. In Asylum Based on Sexual Orientation: A Resource Guide. 1996a

vii.

Stephen O. Murray & Will Roscoe, Boy Wives and Female Husbands: Studies in African Homosexualities, New York: Palgrave Macmillan (1998)

viii.

Nicole LaViolette, 'The UNHCRS Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity' 13 American Society of International Law 10 (30 July 2009)

ix.

Helsinki Citizens Assembly Turkey Refugee Advocacy and Support Program & ORAM Organization for Refuge, Asylum & Migration, Unsafe Haven: The Security Challenges Facing Lesbian, Gay, Bisexual & Transgender Asylum Seekers & Refugees in Turkey (June 2009)

x.

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