By Thomas Clarke – LIPR AOP from Netherlands
In the recent decades, there has been a sheer number of refugees and asylum seekers triggered by long-term war and political strife as well as economic and environmental (UNHCR, 2019). These asylum seekers predominantly come from the Americas, Asia and Africa and seek asylum in rich countries, usually liberal democracies. Across the West, this is met with mere nationalist, sometimes Islamophobic, anti-immigrant rhetoric. Despite the bigotry all of those peoples cannot remain in their home country and ought to leave to regain their liberties. This is especially the case for the LGBTQ community. Across the globe, more than seventy countries criminalize and persecute lesbian, gay, transsexual and queer individuals (hereafter LGBTQ) and people who do not identify with the binary structure of gender based on the sex at birth but rather have their own gender identities and sexual orientation (Carroll & Mendos, 2017). They are persecuted, imprisoned or even sentenced to death for this matter and it is estimated that over 175 million queer individuals live under persecutory environments (ORAM, 2012). In recent years, liberal democracies in Europe and the United States have officially made LGBTQ status the basis for asylum claims.
In this article, I will review no less than seven academic papers with regards to how sexual orientation and gender identity (hereafter SOGI) asylum applicants are on one side welcomed in Western European liberal democracies which do not criminalize LGBTQ, or on the other side how European powers utilize identity politics and a skewed perception of human rights to exclusion.
The 1951 Convention and the subsequent 1967 Protocol (widening geographical and temporal limits of the former) relating to the status of refugees outlined that “a refugee is someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion” (UNHCR, 1967).
It is only in 2013 that the Court of Justice officially integrated sexual orientation and/or gender identity as a basis for asylum application (Gartner, 2015). With regards to what constitutes a refugee according to the international agreements, sexual minority members finally constitute members of a “particular social group” (PSG) for the purposes of the member states’ asylum procedures. However, the literature alerts readers that this recognition only created a “condition” for asylum applications, however these individuals still have to go through lengthy procedures, proving their sexuality, a well-founded fear of persecution, and that the country of their nationality or residence is unwilling or unable to offer protection (Gartner, 2015; Spijkerboer, 2018; Wieland & Alessi, 2021; Chossière, 2021; UNHCR, 2019; Dhoest; Vitikainen, 2020).
The questions around asylum and subsequently LGBT asylum applications gravitate around the notion that Europe benefits from a position of domination and exclusion. Indeed until recently, European domination was conspicuously racial as LGBT criminalization stems from British, Portuguese and French colonial justice systems through the moral intention to Christianize local communities. Spijkerboer (2018) argues that the colonial system was replaced by one denying the relevance of race. We will see throughout the article how this dichotomy between Europe and the rest will impact LGBT asylum cases.
When queer individuals flee their homo- or transphobic environments, they have to prove their queerness, which posits the issue of credibility (Gartner, 2015). It further conflicts with the European’s Court of Human Rights’ (ECtHR) principle [Article 8] that gender identification, sexual orientation and sexual life fall under the right to private life (Spijkerboer, 2018; Wieland & Alessi, 2021).
Further, refugees have to prove their own persecution in an orderly manner. It must rely on evidence albeit often being inexistant. To give an idea, only Belgium out of the 28 UE member states, systematically collects and publishes the number of queer asylum applications (Gartner, 2015). Proving SOGI lies beyond science, let alone law and immigration standards—there is a lack of tangible evidence for any claimant’s queerness (Gartner, 2015). European powers use the ‘criterion of criminalization’ to interpret persecution (Vitikainen, XXXX). Either it is seen as over-inclusive, as the country of origin’s criminal codes may seem not enough to provide substantial consequences to entail persecution, or under-inclusive, as it may fail to secure refugee status for people who would qualify.
Vitikainen (2020) analyses the criterion of persecution to a greater degree than her peers as she layers all injustices LGBT persons may be subject to. The state categories are the following: “active state-sponsored persecution/criminalization”, “passive state-sponsored persecution/lack of state protection” and “structural injustice”. Contrary to the first which has outward anti-LGBT criminal codes, the second category sets forth states which fail to provide effective protection executed by non- or state agents. The lack of protection or persecution is grounded in the ‘agents’, ‘harm’, ‘scope’ and ‘law-alignment’. The latter category refers to situations wherein individuals and institutions support systematic power imbalances, disadvantaging a particular group in society. In many situations, LGBT are marginalized and simply not catered for.
Another factor undermining the inquiry on persecution is the ‘discretion reasoning’. Although individuals were believed to be queer and subject to persecution, Court judgements ruled against asylum cases on “reasonably expectable discretion” with regards to their SOGI (Gartner, 2015). LGBT refugees experience similarly persecutory environments in other countries as prior to their flight. The expectation that LGBT people can avoid persecution by being discreet further displays how the ECtHR and Dublin regulation fail to understand the underprivileged position of queer people, underscoring trans-sexuals’ underestimated harmful experiences.
Due to increased precarity among LGBT asylum applicants, Wieland & Alessi (2021) draw attention on the ‘concept of vulnerability’ and how the ‘Dublin regulation’ compels refugees to seek asylum in their first European country of arrival. It is argued that through the adoption of a ‘queer perspective’, inter-sectionalities and a relationship of care between the state and the PSGs, refugees’ vulnerabilities will finally be addressed, and individual rights protected. Vulnerability theory critically reflects on the role of the economic, social, legal and political systems rendering some individuals and groups more vulnerable than others. If the ECtHR understood that they are subject to stigma, discrimination, social exclusion and dependency on the state due to their underprivileged status. Further, intersections are extremely salient within LGBT asylum seekers, as protection, persecution and protection needs vary widely. Further framing sexual orientation as binary implies that judges will less likely find credible LGBT asylum claims. Gartner (2015) studied vulnerability in greater depth. She reflects on the disbelief culture by denoting societal understanding of queers being closely linked to sin and sex (rather than for instance, identity and love). In two countries, gender identities are reduced to penile or vaginal plethysmography, proxies to measure sexual arousal. Due to the climate of increased disbelief of LGBT asylum seekers, the latter are indirectly forced to undergo extreme steps to increase the success’ likelihood, like providing explicit content. Vitikainen draws from this vulnerability concept and defends throughout her article that the “few states” who have “unique provision[s]” for effective protection, subsequently making them ‘willing’ and ‘able’ to protect LGBT people, have a “moral imperative” to host all LGBT asylum seekers. The author differed from her peers by looking not only at the cases determining refugee status on the basis of SOGI, but rather by looking at all refugees who are LGBT.
Owing to insufficient understanding LGBT people’s experiences and the increased exposure to stigmatization and violence, the Court’s judgements such M.S.S. v Belgium & Greece clash with European law. Judge Saj’o ruled that while some LGBT asylum seekers are vulnerable, not all should be considered comprising a PSG (Wieland & Alessi, 2021). Vitikainen (2020) seconds that the European legal framework operates hetero- and cisnormatively as it constitutes a “threat of domination or deprivation” to their welfare. Chossière (2021) joins in saying that due to the stigmatization of LGBT refugees through othering politics. Queer refugees are subject to “complex intersectional experiences of exclusion” and multiple power relations which exhibit the extent to which heteronormativity shapes refugee’s spatialized experience of otherness in the country of arrival (Chossière, 2021). Gartner (2015) joins the debate in pointing out that assuming queerness on the basis sexual and behavioral, whereas queerness belongs to a highly complex matter integral to one’s personal identity. It further feeds into the culture of disbelief aforementioned. The latter scholar goes as far as saying that the adjucator’s identity plays a larger role than the claimant’s. Overrepresented by Caucasian white heterosexuals, the legal body relies on heteronormative and essentialist characterization sexual and gender minorities. The limited understanding of foreign and queer identities challenges the ‘neutrality’ of the law, which is inherently curtailed by personal experiences, socio-economic background, culture, race and sexuality of the adjucator.
Indeed, decision-makers have the responsibility to rule on asylum grants, however the latter often confront with adjucators’ stereotyping of gender and sexuality (Dhoest, 2019), or indirectly forced to perform certain stereotypes in their applications (Gartner, 2015). This is the nucleus of European refugee regime’s failure. The procedural hearings demand evidence of victimization in their country of origin, hard-to-get to inexistant evidence, and to conform to stereotypes of judges’ expectations of LGBT behavior (Wieland & Alessi, 2021). Stereotypes such as “you don’t look like a trans” display the lack of understanding of queer identities. In immigration realms, migrants are generally assumed to be heterosexuals (Gartner, 2015).
A wide array of scholars’ literacy conglomerates around “sexual nationalism”, or a term coined by Purar (2007), “homonationalism” (Spijkerboer, 2018; Dhoest, 2019). Spjikerboer (2018) discerns asylum applicants’ strategic processes of depicting their country of origin in accordance with European stereotypes: as a place of cruelty, violence, and human rights violations. SOGI being a reason to grant asylum translates into a “liberation narrative” demonization of applicants’ home countries, setting up a hierarchical West-East dichotomy (Dhoest, 2019). Spijkerboer (2018) scrutinized this dichotomy between the idealized European self (human rights, liberty, progress) and a demonized non-European other (stagnation, oppression, darkness). Scholars, such Judith Butler see how sexual freedom was appropriated by Europe, thereby separating the assumedly pre-modern Islamic states. This confronts sexual and religious freedom, creating an antinomy within liberal discourse itself.
The latter is the use of gender and sexuality to underscore the dichotomy between Europe and the rest. Asylum seekers’ use of stereotypes both confirms and undermines the vilification of non-Europeans, as they bend their stories to conform to judges’ expectations, as well as it both confirms and undermines the glorification of Europe (Spijkerboer, 2018). Asylum seekers appeal to European values, not because they lack them, but simply because they share them. Nevertheless, there is a clear dichotomy between the West and the East (Dhoest, 2019). Beyond setting up a stark dichotomy, asylum judgements are the theater of normative construction site of a limited set of queer identities which adjucators seem worthy of protection (Gartner, 2015). Spijkerboer (2018) argues that migration control is less about the number or the background of people, but inclusion lies within the expectation to fit into the normative order, excluding the people representing a threat. The scholar (2018) underscores how European powers used the flows of migration politically: state, media and other authorities framed it as “crisis”, when it only increased the total population of 0.5% (in contrast to 4% in Turkey and 30% in Lebanon). This political apparatus was carried against refugees because of European fear that they will potentially destabilize this dichotomy. In other words, flows of refugees coming towards European soil is a legitimate reason to justify European domination and exclusion (Spijkerboer, 2018)
Wieland & Alessi (2021), Dhoest (2019) and Chossière (2021) all share that upholding an intersectional lens on LGBT migration is an inevitable step for states to understand the real implications of and power relations with sexuality, gender and refugeness and migration. This framework would enable understandings of vulnerability aforementioned (Wieland & Alessi, 2021). The latter scholars expands by coining ‘intersectional invisibility’ which accounts for the importance of historicization, contextualization, refraining from using universalized expectations of how LGBT asylum seekers should behave. Narratives depend on race, ethnicity, religion and socioeconomic status, and gender fluidity poses a direct challenge to European refugee law, which prefers “static and concrete identity groupings” (Wieland & Alessi, 2021).
Queer migration literature calls for legal practitioners to use an intersectional framework to better understand (foreign) queer identities. Further they ought to acknowledge the extraordinary trauma LGBT asylum seekers have to undergo in order to unlearn their stereotypes and conceptualizations of what a LGBT asylum seeker should behave. By owning up to the apparent hetero- and cis-normative standards of European courts, host states will be able to not only acknowledge the extent to which their asylum process is adding new layers of oppression, stigmatization and violence their trauma, but facilitate their inclusion and uphold asylum seekers’ basic human rights. European host countries have found sophisticated ways to challenge the genuine quest for protection of foreign queers, such as instigating exclusionary policies such as the Dublin Regulation which in many regards challenges European law, using ‘discretion reasoning’ by arguing that being discreet may have a positive impact in the level of persecution a LGBT is subject to. There are issues with how much European adjudicators see asylum claims as credible, which questions the reader on the objective or subjective interpretation of human rights in European courts. Moving away from how migrants are mishandled in their host countries, the articles also draw attention on how Europeans’ misunderstanding of foreign and queer identities establishes an unhealthy relationship between Europe and the rest. While they are not in a position of overt (racial) domination, the ‘Old Continent’ sustains a human rights-bearer position of inclusivity and moral superiority, in stark opposition to the demonized rest, framing it as situations of mere oppression, homophobia and decay.
Annamari Vitikainen (2020) LGBT rights and refugees: a case for prioritizing LGBT status in refugee admissions, Ethics & Global Politics, 13:1, 64-78, DOI: 1080/16544951.2020.1735015
Carroll, A., & Mendos, L. R. (2017). State-sponsored homophobia. Geneva: Ilga.
Chossière, F. (2021). Refugeeness, Sexuality, and Gender: Spatialized Lived Experiences of Intersectionality by Queer Asylum Seekers and Refugees in Paris. Frontiers in Human Dynamics, 3.
Dhoest, A. (2019). Learning to be gay: LGBTQ forced migrant identities and narratives in Belgium. Journal of Ethnic and Migration Studies, 45(7), 1075-108
Gartner, J. L. (2015). (In)credibly Queer: Sexuality-based asylum in the European Union. Transatlantic perspectives on diplomacy and diversity, 39-66.
Organization for Refuge, Asylum & Migration, Opening Doors (ORAM). (2012). A Global Survey of NGO Attitudes Towards LGBTI Refugees and Asylum Seekers.
Spijkerboer, T. (2018). Gender, sexuality, asylum and European human rights. Law and Critique, 29(2), 221-239.
UNHCR (2019). UNHCR Global Trends Report: Forced displacement in 2018. https://www.unhcr.org/5d08d7ee7.pdf