LGBT Asylum in the EU: (pseudo)Science and immigration policy

SUMMARY: LGBTI asylum cases are on the rise worldwide and the EU remains a popular destination for those seeking protection. However, the immigration policies of most EU member states have failed to keep up with science or society, resulting in a frightening reliance by major European judicial bodies on sexual pseudoscience and the testimony of third party ‘experts’. The policies have proved incapable of protecting even the most basic of the European Convention’s rights to privacy and against discrimination, and major reforms – beyond the reparative responses to recent outbursts of homophobia in Uganda, Sierra Leone and Senegal – must be undertaken.

Until relatively recently, there was limited precedent for LGBTI asylum law and case study.  The past decade, however, has seen a surge in both applications and admittances for asylum on the basis of persecution of LGBTI identity with thousands of LGBTI asylum seekers applying for protection in Europe every year.

Although steps towards recognizing sexuality and gender identity as grounds for persecution have been taken by the EU, substantial differences in the ways in which individual states adjudicate cases remain. Despite efforts to consolidate asylum policy, reliance on the Dublin Regulation has contributed to the mistaken assumption that each state examines applications based on a shared standard. The error of this assumption has been made all too apparent by the plethora of cases in which a lack of precedent, combined with ignorance of LGBTI identity, has led to a political and judicial reliance on pseudoscience of the mind and the body.

Although the World Health Organization removed homosexuality as a medical category in 1990, thus invalidating any medical examinations or testimony in determining whether applicants are Lesbian, Gay, or Bisexual, eight EU countries have been reported to have used psychologists, psychiatrists and/or sexologists to determine applicants’ sexual orientation. They include Austria, Bulgaria, the Czech Republic, Germany, Hungary, Poland, Romania, and Slovakia. The case of the UK is involved and disturbing enough for its own post (later).

It is therefore all the more alarming that this status of stable mental health remains denied to Transexual and Intersex individuals, who may be subject to more invasive ‘medical’ scrutiny as a result. An example of such invasiveness in applicants who claimed a gay identity is the ‘phallometric’ testing conducted by Czech authorities, in which applicants’ physical reaction to pornographic material, including child pornography, was tested to determine sexual orientation. Even in countries which no longer require medical examinations to establish credibility, many, if not most applicants nevertheless feel that courts may not rule favorably unless an examination is conducted on their own initiative.

Cases which do not admit medical examinations still hinge on troubling precedents of ‘expert’ testimony and rely on definitions of sexual identity which fail to account for its nuances and complexities and justify invasive interrogations and background checks.

A fruitful example is that of Germany. The landmark 1988 decision of the Federal Administrative Court (Bundesverwaltungsgericht) establishing the necessity of an applicant to have not a ‘mere inclination’ (bloße Neigung), but an ‘irreversible homosexuality’ (irreversibele Homosexualität), defined as an ‘inescapable fated commitment to homosexual behavior or gratification’ (unentrinnbare schicksalhafte Festlegung auf homosexuelles Verhalten bzw. Triebbefriedigung), continues to delineate the boundaries of homosexual identity. The ruling was at least partially informed by the ‘expertise’ of a Professor of Sexual Sciences and a founding member of the Frankfurt Institute for Sexual Sciences who had apparently written numerous opinions on the purported sexualities of asylum applicants.

It is easy to see how even without the ‘hard’ science of phallometrics and other more invasive measures, the state defines and legitimates its definitions of sexuality through appeals to ‘experts’. Experts whose ostensible ‘knowledge’ is nonetheless ‘scientific’ insofar as it can formulate, organize, and determine human sexuality into a series of boxes to be checked by adjudicators and disseminated through inter-agency memos. In this cruel manifestation of biopower, institutions of the state endeavoring to ‘discover’ human sexualities end up defining and enforcing them (more on that later).

The ruling serves as just one publicly accessible example of rubrics by which LGBTI identities are thusly defined. Definitions supported by unacknowledged precedents of psychological and/or biological testing and testimony which continue to serve as benchmarks of LGBTI identity during interviews questioning applicants’ lifestyles, associations with ‘LGBT’ organizations, former sexual associations, and general LGBTI related personal histories. The same can be said for the process of validating witness statements attesting to applicants’ ‘commitment’ to ‘homosexual behavior or gratification’.

Let us take a moment here to consider just what kind of questions are necessary to determine a ‘fated commitment’ to ones sexuality. (Un)fortunately, a leaked report from the UK Home Office gives us some idea.

The past year has been seen a number of advances in EU standards for asylum eligibility for homosexuals. The same cannot be said for bisexual, transexual or intersex individuals. Nor can it be said for the standards by which LGBTI identities are determined. Last year, the Hebrew Immigrant Aid Society reported that 44% of LGBTI refugees suffer from post-traumatic stress disorder. This number is unlikely to decrease if measures to understand and respect the nuances and complexities of sexualities are not taken by the institutions responsible for protecting the rights to express them.

This year, this is pretty much all we’ve got as far as that’s concerned.

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