In Uganda, engaging in “homosexual conduct” garners the possibility of the death penalty; meanwhile, other countries like Canada and Norway are passing laws illegalizing discrimination against sexual orientation to add to their gay marriage and gay adoption laws. Perhaps no other issue so starkly captures the differences in opinion and ideology that mark the world today. As Western countries have grown more and more accepting of homosexuality as a phenomenon, asylum claims based on sexual orientation have rocketed, making this an emerging field of law, by all definitions. Lawyers are still deciphering on which grounds one can claim asylum based on sexual orientation, and many precedential cases continue to appear involving the issue. The main crux to which this emerging field of law can be attributed is one simple phrase: “particular social group”. This vague wording has left to the interpretation of the court hundreds of cases, and has spawned dozens of decisions that continually define and redefine its parameters. Therefore, in this discussion of sexual orientation asylum law, the focus will be on the “particular social group”, how lawyers are arguing for sexual orientation asylum using this claim, and legal developments involving the definition of a “particular social group” that could shape the future of sexual orientation asylum law, both negatively and positively.
The first case of asylum based on sexual orientation came from Cuba in 1989. A man named Fidel Armando Toboso-Alfonso claimed that as a member of a particular social group, the LGBT community, he was persecuted by his government. The court affirmed his statement, and in 1994, US Attorney General Janet Reno designated this case as a precedent, stating, “ an individual who has been identified as homosexual and persecuted by his or her government for that reason alone may be eligible for relief under refugee laws under the basis of persecution as a member of a particular social group…this [case] represents an appropriate application of the law.” The original case was most likely fueled by Cold War politics, but it nonetheless provided help for many later cases seeking asylum and was extremely important in its acknowledgement of persecution in the LGBT community, and its implicit promotion of gay rights. It both legitimizedLGBT persons as members of a community and acknowledged that they may be persecuted as members of this group. It seems that this ought to have closed the door on further developments, as it gave a clear-cut statement regarding LGBT asylum. However, like most law, this precedent was just the beginning, and in the past 18 years and presently, developments continue to shape the legal field for LGBT asylum seekers.
One important way in which sexual orientation asylum has been affected is the changing definitions of “particular social group” by various court decisions. The first change involves what is known as “social visibility”. While, “the dominant view of the international community, rooted in the BIA’s seminal decision in Acosta, defines a ‘particular social group’ solely based on an ‘immutable characteristic’, one that an individual cannot change or should not be required to change because it is fundamental to identity or conscience”, some countries are now adding an extra required dimension to this definition, known as social visibility. (Marouf 2008) This is because of a later decision by the BIA in 2002 that, “suggested in an ambiguous and internally inconsistent decision that the ‘protected characteristic’ and ‘social visibility’ tests may represent dual requirements in all social group cases” (Marouf 48) This social visibility requirement essentially means that the government of a country from which the person seeking asylum is fleeing must recognize their social group. It also means that those LGBT persons who cover their sexual orientation out of fear may not be eligible for asylum under this mandate. This makes this development especially problematic in cases of LGBT refugees. Many countries do not recognize sexual orientation as a social group. The irony in this situation lies in the fact that often those countries that are the most oppressive are also the countries that do not recognize sexual orientation as a social group. Thus, LGBT members who often need asylum most are the ones that are affected most adversely by this decision. A powerful example is the situation in Iran. President Ahmadinejad stated publicly and very infamously that gays do not exist in Iran. However, the gay advocacy group “Outrage” estimates that nearly 4,000 Iranian citizens have been killed because of their sexual orientation since 1979. This means that LGBT members in Iran are in great danger of persecution because of their sexual orientation, but since they do not officially exist in Iran, may be at a disadvantage in seeking asylum.
This development also undermines previous progress that has been made in LGBT asylum law. This is because many countries, including the United States, have stated that, “with respect to sexual orientation…gays and lesbians who remain ‘discreet’-and therefore ‘invisible’- are protected by the refugee definition. Under the ‘social visibility’ test, however, their claims may well be denied. Indeed, even claims brought by ‘out’ gays and lesbians may be rejected if they come from societies that do not recognize homosexuals as a group or homosexuality as a social identity.”(Marouf 50) This is problematic because it encourages those in countries with rigid laws regulating homosexuality to be silent and complicit, with the knowledge that they may face difficulties in seeking asylum should their life be in danger. Thus, it promulgates the uniform voice of those oppressive societies and helps to nullify any voice of change coming from within. It also ironically targets those who need asylum most, because those forced into invisibility by their governments are most likely the ones in danger.
Another effect of this “social visibility” requirement is that it unfairly targets lesbians seeking asylum, furthering an already difficult journey to asylum for many women. This is because, “ while gay men’s sexualities sometimes have a public face, lesbians often remain invisible in the public sphere.” (Marouf 84) There are a number of speculations on why this is: that gay men often form enclaves while lesbians have social spheres, that lesbians often are forced into marriages by misogynistic societies, and that there is almost a complete lack of visibility of lesbians in the public sphere are a few speculations. Studies of cases amongst lesbian women in Canada and Australia show that women have a harder time seeking asylum because their “experiences were too ‘private’”. (Marouf 84) Social visibility requirements will most likely further this gap between gay men and lesbians in asylum law, both because oppressive countries are less likely to recognize lesbians as a social group since misogyny and homophobia are often connected, and because their experiences are more likely to be private.
The social visibility requirement is also important because it can hurt gay men who do not fall outside of hegemonic definitions of masculinity. In one case, “the BIA denied a gay man’s application for asylum because he appeared too stereotypically heterosexual. This decision is representative of a trend in immigration law to equate visibility with the potential for anti-homosexual persecution. “ (Hanna 913) This has been helpful for people who identify as transsexual, but harmful to gay men who are masculine. It has even led many gay men seeking asylum to play the system and dress effeminately and change their mannerisms for a hearing. In Soto Vega’s case mentioned above, the judge stated, “ I didn’t see anything in his appearance, his dress, his demeanor, his gestures, his voice, or anything of that nature that approached the stereotypical things that society attributes to gays… it would not be obvious that he is homosexual unless he made it clear himself” (Hanna 914) The court decided to grant asylum to a transgender woman, however, in the case Hernandez-Montiel vs INS. In this decision, the court came to the conclusion that there was a separate social group within the gay community for “ gay men with female identities”, and argued that this group has a higher likelihood of facing persecution than other groups under the LGBT umbrella. This decision and the language it uses has reshaped the ways in which lawyers advocate for asylum cases.
This development has brought many protesting voices from legal experts. Hanna, in her legal analysis of this development says that this development “conceptualizes homosexual identity in a way that is inconsistent with the immutability element of asylum law. “ (Hanna 919) This is because many judges are beginning to judge homosexuality as a behavior rather than as an “immutable characteristic” as has previously been judged necessary in asylum cases. In stating that to be gay is to engage in “stereotypical behaviors”, and in concluding that the absence of this behavior is tantamount to an absence of sexual orientation as protected under asylum law, they are negating the immutability of homosexuality. The article then goes on to argue that homosexuality either is or isn’t, but does not occur on a gradient scale. So, one cannot be “more gay” or “less gay”. And possessing an immutable trait is sufficient grounds under asylum law to be considered a member of a particular social group. According to the author, “ an immutability based legal standard for those persecuted on the basis of their sexual orientation must recognize that while some people are capable of resisting any form of expression of that orientation, they are still gay and not necessarily immune to the fear of prosecution…when gender conforming individuals are less intensely persecuted in a specific country, it does not negate the fact that they are fundamentally persecuted for their homosexuality.” (Hanna 919) This court decision, the article ultimately argues, is an unfortunate byproduct of the large misunderstanding of homosexuality by many judges as formed by actions rather than as an implicit identity. Thus, those who are gender conforming are in some ways discriminated against in seeking asylum, not because of the intensity of their persecution, but rather because of the outward visibility of their sexual orientation.
The other argument presented against this new emergence of social visibility is the idea that visibility is inversely related to oppression –in other words, as oppression increases, visibility tends to decrease. So, because of this fact, these changes in asylum law are detrimental to those who need asylum most. Hanna cites, “ a study in Egypt [which] documents how an ‘increasing public awareness that colored underwear, long hair, and tattoos were all telltale signs’ of homosexuality that led the gay community to avoid these things.” (Hanna 917). Marouf adds that, “ by requiring social visibility to establish a particular social group, the BIA neglects the ways that invisibility forms a core part of the experience of oppression. “ (Marouf 79) He argues that invisibility, rather than negating the existence of oppression, is in fact a sign of oppression. The fact that one is forced to hide shows fear, and the fact that this fear causes them to hide is in and of itself a form of persecution.
Finally, legal experts argue that this test of social visibility grants too much discretion to the judge, allowing bias to more easily enter the legal system in asylum cases. For example, “the ‘social visibility’ test gives decision-makers total discretion to decide whether or not a particular social group exists. Since the test is not law-based, and social perceptions are so fluid, adjudicators will be able to deny freely the existence of a particular social group, despite the existence of a protected characteristic, based on a finding that the group is not socially visible.” (Marouf 106) This especially affects an issue like sexual orientation, because there is still a significant amount of bias against the LGBT community in the legal systems of many Western nations, as seen by the fact that very few of the major countries that accepts refugees has legalized gay marriage. Thus, this social visibility test can even further hinder the LGBT asylum-seeker by subjecting them to the bias of the judge who is deciding the case.
The next important issue to discuss is how lawyers are reacting to this new requirement, and how specific cases are being affected. The first group is gay men. As predicted, it is becoming a trend that gay males who are more effeminate are also more likely to be granted asylum than gender conforming individuals. One of these cases is that of Fernando Enrique Rivera, of Mexico. His request for asylum was denied by the court on the grounds that he was not effeminate enough to face persecution in a country like Mexico, where, in parts, gay marriage is legal. He was a member of the police in Puerto Vallarta. The judge argued that he had the ability to move to another more accepting part of the country, a consideration that is important in analyzing asylum claims. The Immigration and Refugee Board of Canada (IRB) stated that the only cases that need asylum from Mexico involving sexual orientation are those men who are effeminate, those who are HIV positive, and those who are politically active, further supporting this new trend in asylum law. This reasoning was supported in another decision in the United States, which granted asylum to a transgender woman from Mexico. The woman, Alexandra Reyes, was born male and abused by her family when she decided to become female at age 12. The court decided that the Mexican government was incapable of protecting Reyes, and that her existence was grounds for danger in her home country. Her outward appearance and characteristics did for her what Rivera’s sexual orientation could not. A similar case involving Hernandez-Montiel, another transgender woman from Mexico, was accepted by the court.
The next category that warrants investigation in light of these new rulings is the cases of lesbians who seek asylum. One case, Tavera Lara, from Colombia, was rejected by the courts on insufficient evidence of persecution versus harassment. The court argued that although Tavera, who had been fired from her job and received life-threatening notes against her because of her sexual orientation, had been harassed, this did not fall under the definition of persecution needed to win asylum in this case. This case supports the view that “lesbian asylum seekers especially have difficulty convincing the courts that the level of oppression that they faced is equivalent to persecution.” (Berger 673) There have been, however, a significant number of lesbians who have successfully gained asylum- their cases were, however, also contingent on another category of persecution in addition to sexual orientation. One case is that of Vanessa, from Nicaragua. She had discovered her lesbian sexual identity at 12, but was caught by her family and threatened. She then married a man named Antonio, who was aware of her sexual orientation. However, he was involved in drug trafficking, and after her discovery of this, he began beating her and refused to let her leave the relationship. Lawyers argued in her asylum case that Antonio would likely continue to beat Vanessa, and as homosexuality is illegal, Vanessa could face oppression from the government should Antonio or her family report her to authorities. Thus, the lawyers “intertwined gender, sexuality, and political opinion in locating her social category and combined gender based and sexual orientation case laws to show justification for their client’s position” (Berger 676). Other cases of asylum for lesbian women used similar arguments of multiple and intersecting persecuted identities to argue for their cases. These identities include race, social status, gender, and marital status. With the new visibility requirement, having multiple examples of pastpersecution is the most effective way to ensure that asylum is granted. It is unfortunate that for lesbians it often must be more difficult to seek asylum, however, in most cases, they are granted asylum if they can provide multiple areas of persecution.
This new social visibility requirement has caused ripples in the legal community- and rightfully so. Its effects are certainly detrimental to specific groups of people, and it can further the misogyny that many argue is already present in asylum law (Berger 664). It additionally encourages deception in the cases of gay men who fake effeminate mannerisms in order to make themselves more likely candidates for asylum. While it is true that outward effeminacy puts one at greater risk for oppression, it seems unfair to not consider those who are gender conforming as seriously, because in many cases, their plight or risk of persecution may be just as great as that of someone who is more effeminate. In Iran, for example, if you are caught with another man, you are often at higher risk for execution as someone who is effeminate. In fact, in some cases, being transsexual (the most extreme type of gender non-conformation) is preferred to being gay. Iran, the country with some of the most rigid oppressive tactics against homosexuality, is in fact the country that performs the most sex change operations in the world (BBC 2005). This is most likely because many gay couples fear execution, and so one person in the relationship goes through a sex change to make their relationship acceptable and heterosexual. Nonetheless, this case illustrates that it is much more risky for a gay man to be gender conforming and still engage in homosexual behavior than it is to be non-gender conforming and in the same relationship. So, for courts to make a strict rule on whether being effeminate or transgendered puts one at higher risk is irresponsible and has potentially devastating consequences.
Rather, courts should consider carefully each case based on its background and with a strong knowledge of the laws and culture of the country. Social visibility should be taken out of the requirements, because in many cases, oppression causes less visibility, and those most oppressed are those who are also least visible. Cases based on sexual orientation should be viewed equally, regardless of how effeminate the asylum-seeker is. The court ought to instead look at the history of persecution and the chance of future persecution alone. If being effeminate increases that chance, then they ought to grant asylum. However, if, for example, someone is gay and their family knows about it, but they are gender conforming, this case ought to be considered with equal gravity as the case of the effeminate man, because their risk of future persecution is similar. Finally, the court should recognize that lesbians and gay men face persecution in different ways, and take steps to recognize that lesbians in marriages with men can face just as much oppression in private as “out” gay men do in the public sphere.
Asylum law is a difficult area of law to grapple with, because many people seek asylum, and most, in differing capacities, deserve it. So rejecting any case can be difficult and have exceptionally detrimental consequences. The courts, in adding the social visibility requirement, were most likely trying to recognize more inauthentic asylum cases, and make more room for those who genuinely needed asylum. Nonetheless, this decision has had negative reciprocal effects, and the international community must strive towards a standard for asylum law that is fair and just, for all involved, regardless of sexual orientation or gender.
Berger, S. A. (2009). Production and Reproduction of Gender and Sexuality in Legal Discourses of Asylum in the United States. Signs: Journal Of Women In Culture & Society, 34(3), 659-685.
Hanna, F. (2005). Punishing Masculinity in Gay Asylum Claims. Yale Law Journal, 114(4), 913-920.
Marouf, Fatma E. (2008) “The Emerging Importance of “Social Visibility” in Defining a Particular Social Group and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender”. Scholarly Works. Paper 419.
“Mexican Transgender Asylum Seeker Allowed to Stay in U.S.” – The Denver Post. Web. Apr. 2012. <http://www.denverpost.com/news/ci_16560073>.
“A Gay Refugee Finds Shelter In Court.” The Daily Beast. Newsweek/Daily Beast, 10 Sept. 2000. Web. Apr. 2012. <http://www.thedailybeast.com/newsweek/2000/09/10/a-gay-refugee- finds-shelter-in-court.html>.
Hudson, Mike. “Escaping abuse overseas: gay men from conservative countries are winning the right to asylum in the United States” The Free Library 24 May 2005. 29 April 2012 <http://www.thefreelibrary.com/Escaping abuse overseas: gay men from conservative countries are…-a0132620010>.