Countries such as the US, Ireland, Finland and Scotland have recently joined the growing list of nations legalising same-sex marriage. But in many parts of the world the situation for LGBTI people is getting worse – rather than better.
There are 77 countries that still criminalise homosexuality. The majority of these are in Africa, where homophobia and transphobia are rife, and LGBTI individuals are persecuted with impunity.
It is estimated that 175 million LGBTI persons are living in persecutory environments worldwide. However, there are only around 2500 successful asylum claims founded on sexual orientation or gender identity grounds each year.
Persecution based on a person’s sexual orientation, gender identity and intersex variation is recognised as a legitimate ground for seeking refugee status. But many countries – including Australia – still fail to assess such claims in an appropriate and sensitive manner.
How the law treats LGBTI asylum seekers
The high failure rate of claims for asylum that are brought because of persecution based on a person’s sexual orientation or gender identity is leading applicants to resort to desperate measures to prove they are gay.
Earlier this year, in the UK, an asylum seeker from Nigeria tendered a video of her having sex with her girlfriend in an effort to prove she is a lesbian. However, this only resulted in the barrister representing the Home Office conceding that while she had “indulged in same-sex activity”, she was “not part of the social group known as lesbians”. He continued:
You can’t be a heterosexual one day and a lesbian the next day.
The High Court rejected the barrister’s submission. But the judge also rejected the claim for asylum, finding that the applicant had fabricated being a lesbian. This appears to have been based on the applicant having previously been married and had children.
This completely ignored the persecutory environment from which the applicant fled, and the fact that many may marry and have children to conceal their sexuality, or because they are forced into marriage, or simply because they were not yet aware of their sexual orientation.
Australia’s Federal Court has already heard two sexual orientation-based asylum appeals in 2015 that reveal deeply troubling attitudes and practices. In one case, the Refugee Review Tribunal partially disbelieved an applicant’s credibility because he declined to respond to questions about whether he used lubricant when having sex with his partner.
In another case, an asylum seeker from Mongolia felt compelled to provide a sexually explicit photograph in order to prove his sexuality. The Refugee Review Tribunal found that these images merely proved that the applicant had had sex with a man once, and did not establish that he was gay. The claim for asylum was rejected.
Claims for refugee status used to be rejected on the basis that LGBTI persons could live safely in their home countries if they were just discreet. Now that the courts have rejected that line of reasoning, claims are being rejected on the basis that LGBTI asylum seekers are not viewed as credible.
The credibility of LGBTI applicants is being determined on the basis of outdated Western notions of how LGBTI people should act, look and dress. For example, gay asylum seekers have been asked what clubs they frequent, and whether they have read Oscar Wilde. Lesbians have been asked if they use sex toys and been told they don’t look like a lesbian.
Australia can treat LGBTI asylum seekers better
It is clear that – notwithstanding a marked improvement in the way most Western societies view LGBTI people – some of the people assessing claims for asylum based on sexual orientation or gender identity are doing so based on discredited stereotypes of what an LGBTI person should look like and how they should act. They are relying on overly simplistic understandings of the diversity and complexity of human sexuality.
A new guide, produced by Kaleidoscope Australia Human Rights Foundation, may provide the much-needed guidance on how claims for asylum based on sexual orientation, gender identity or intersex variation should be assessed. It sets out not only what sort of questions are inappropriate when interviewing an LGBTI asylum seeker, but also gives examples of suitable questions.
For example, how many heterosexual people could answer the question:
When did you first realise you were straight?
Yet LGBTI asylum seekers are often asked:
When did you realise you were gay?
If they struggle to answer, their credibility may be called into question.
Decision-makers may draw an adverse inference if an asylum seeker is not upfront in disclosing all relevant facts on which their claim is based at the very first opportunity. This ignores that many LGBTI asylum seekers – particularly those fleeing countries that criminalise homosexuality – have a deep fear of people in authority. It may take some time before they feel comfortable disclosing intimate, private details about themselves to a government official.
Australia has a long way to go not only in properly assessing claims for asylum based on sexual orientation or gender identity, but also in how it detains and resettles LGBTI asylum seekers and refugees. Sending them to countries that criminalise same-sex sexual conduct between consenting adults is akin to returning them to the very environment from which they fled.
As horrific as mandatory detention is for all asylum seekers, the UN Special Rapporteur on Torture has found that:
Within detention facilities … gay, lesbian, bisexual and trans-gender persons suffer double or triple discrimination.
As a signatory to the Refugee Convention, Australia has a duty to fairly assess claims for asylum based on persecution stemming from a person’s sexual orientation or gender identity, to protect such persons from further harm while in detention and to ensure they are resettled in an environment where they are not at risk of again being persecuted for being LGTBI.