LGBT: Over the Rainbow

Source: Human Rights Watch 

Dispatches: Over the Rainbow

by  Graeme Reid

Personally I am pleased to say that I am authentically and verifiably gay, having seen The Wizard of Oz, albeit late in life. I am grateful to a friend who explained that, in the US at least, I would lose my gay card if unable to answer the question: “Are you a friend of Dorothy?”

It seems that gay cultural capital is also essential for lesbian, gay, bisexual, and transgender (LGBT) refugees seeking asylum in the United Kingdom. According to a report by the Home Affairs Committee, LGBT asylum seekers are routinely asked inappropriate “lifestyle” questions based on cultural stereotypes, such as, “have you read Oscar Wilde?” Or in some instances, asylum seekers have supplied photographs of an intimate nature to support theirapplications.

At one time the Border Agency used “voluntary discretion” – the capacity to live a closeted life in a homophobic society – as sufficient grounds to decline an asylum application. But this changed after a 2010 UK Supreme Court ruling interpreted the United Nations Refugee Convention to mean that people should be able to “live freely and openly” in their own country. Since then, there has been renewed emphasis on proving that you are gay.

The UK Border Agency’s 2010 Asylum Policy Instruction closely follows the 2008 UNHCR Guidelines that “generally speaking self-identification as a lesbian, gay or bisexual will be the normal starting point as an indication of a person’s sexual orientation.”

In many of the 78 countries around the world where homosexuality is illegal, or where homophobic and transphobic violence is extreme, LGBT people are forced to live deeply closeted lives. This can make it hard to prove that they are LGBT when they have had to conceal that aspect of their identity or face persecution. This makes it difficult to establish “credibility” – the litmus test for asylum applications.

“Proving homosexuality” through medical testing, or intimate evidence, is invariably invasive and degrading. Some extreme examples: in Turkey,where military service is compulsory for all men except gay ones, individuals seeking exemption are sometimes compelled to undergo humiliating and degrading physical examinations. In some cases, they are forced to produce photographs showing themselves as passive partners in anal intercourse.

It was only in 2012 that the LebaneseDoctors’ Syndicate issued a directive banning anal examinations as a method to prove culpability in homosexual cases. Forensic anal examinations are scientifically unsound and violate international standards against torture and degrading treatment. And yet they continue to be used in some countries, where laws criminalizing sodomy remain on the books.

These are particularly egregious examples of degrading and spurious tests, but for LGBT refugees applying for asylum in the United Kingdom, inappropriate personal questions can be frightening, invasive and humiliating.

According to UN Refugee Agency guidelines, self-identification as LGBT is only a starting point - “an indication” of a person’s sexuality -and needs to be complemented with other evidence or, if that is not available, a judgment on the person’s overall credibility based on his or her interviews. Gathering evidence to substantiate an asylum claim is the legitimate business of the Border Agency; invasive questions or assumptions based on cultural stereotypes are not.

The Home Office and the President of the Upper Tribunal Immigration and Asylum Chamber should issue urgent guidance to caseworkers and judges respectively, to clarify that self-identification as LGBT should be sufficient, and that intimate photographs or intrusive questioning are never an appropriate means of establishing credibility.

The Wizard of Ozmay yet prove relevant for refugees and asylum seekers: “If we walk far enough,” says Dorothy, “we shall sometime come to someplace.”