The burden of proof to prove their gender identity is not just a legal requirement but also a lived burden and struggle for sexual and gender diverse people when they seek protection from persecution.
After World War II, the 1951 Refugee Convention was drafted to protect people displaced by events in Europe before 1 January 1952. This geographical limitation was removed with the Additional Protocol to the Geneva Convention in 1967, which turned the Refugee Convention into a global framework for International Refugee Law, aiming to protect those fleeing persecution. In theory, International Refugee Law should protect anyone who has a well-founded fear of persecution. People fleeing persecution, among other requirements, should also provide and prove the grounds they fear persecution, such as their sexual orientation or gender identity. However, in practice, many individuals from sexual and gender diverse groups still struggle to prove their identity, as this process is not as straightforward as it may seem.
People who have a well-founded fear of persecution due to their membership in a sexual or gender diversity group can legally seek safety in a country where it is safe to do so. The jurisprudence across the globe has been examining asylum cases, evolving to allow the community to apply for asylum since the late 70s and early 80s, when many jurisdictions began recognising sexual orientation and gender identity as grounds for asylum. Even though this development could be seen as a positive step, the burden of proving sexual orientation and gender identity is still a major difficulty, which raises many legal, as well as social implications.
Before exploring those implications, it is important to start with a different question that many people naturally ask when working with refugees from diverse sexual and gender identities: How can someone prove their identity? Human curiosity, combined with the recent public media attention surrounding this topic, has prompted many people to begin openly discussing how sexuality and gender identity are actually assessed.
From stereotypes on how a non-cis/heterosexual individual should behave or live, to the expectation that they could “choose” to hide their identity, to the complications of interpreting, these individuals face myriad obstacles in proving their identities. These barriers are just a few of the many, still very real and visible, that sit on top of a deeper problem: the lack of safe routes for people to seek protection, the need to take unsafe journeys, and the exposure of people to legal proceedings, including the burden of proof.
It is vital first to acknowledge that these questions are very normal for someone to have and ponder. How does the law capture notions as personal and sensitive as sexuality and gender identity?
Stereotypes, Intimacy and Visibility
Assessing sexual orientation and gender identity is an extremely challenging practice. One of the major obstacles is the stereotypes that lead decision-makers to expect very specific narratives for asylum seekers fleeing persecution, due to their identity. In the UK, many Home Office staff were reported to use Western stereotypes and “particular queerness” in their attempts to assess sexuality and gender identity, such as “needing to be able to recognise the LGBT flag”. Both sexual orientation and gender identity are invisible characteristics, but individuals are more likely to be granted refugee status if they fit into those stereotypes more visibly.
It is important to mention that questions about the sexual practices of an asylum applicant were also a common practice, especially before 2014, when most jurisdictions accepted such evidence. That evidence could be used either in favour of or against the asylum applicant’s decision. Despite those questions being deemed inappropriate and illegal, such practices have been reported in the UK and other jurisdictions. This demonstrates that asylum applicants are not only expected to make their sexual identity visible but may also be pressured to disclose intimate aspects of their personal lives. While these practices are now prohibited, they may nevertheless continue to influence or informally influence the asylum decision-making process.
Moreover, many were rejected, as they were told that they do not look gay or even transgender. On the one hand, sexual orientation and gender identity are both non-visible characteristics, requiring moments of visibility. However, this visibility could be accompanied by the reproduction of evidence of an intimate moment (especially in the past). On the other hand, many decision-makers reject asylum cases based on how they look, their appearance, or how they behave in their life. There is an expectation from decision-makers that queer identity is fixed with specific narratives.
For instance, it is expected that sexual and diverse groups would attend prides and be open about their identity. Overall, asylum seekers face a troubling paradox: the expectation of making their invisible sexuality visible, combined with the need of the system for asylum applicants of sexual and gender diverse groups to fit the familiar Westernised stereotypes. These obstacles are just a starting point of the difficulties of the burden of proof for queer people.
Evidence…To Keep or Destroy?
Some types of evidence, such as public affection, social media posts and photos with partners, can be expected but are difficult to obtain. A refugee, by definition, is someone fleeing due to fear of persecution, making it unlikely that people can possess evidence of this fear for many reasons. In many countries, such forms of proof could even lead to imprisonment, making it extremely risky for individuals to retain any documentation that could further endanger them. Ultimately, the risk of maintaining evidence is higher than the risk of destroying it to avoid persecution or prosecution.
Discretion Element
Another issue that seems to persist is the discretion requirement. In 2010, the UK Supreme Court ruled that asylum could not be refused to a homosexual person on the basis that it could be “reasonably tolerable” for them to be “discreet” in their country of origin. This means that before that significant case (HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department), people were expected to hide their sexuality and behaviours to avoid persecution. In other words, if someone was fleeing persecution due to their sexual orientation, their claim could be rejected on the basis that they are in a position to conceal their identity, hide it and pretend they do not belong to this group, in order to avoid persecution. After this case, the well-known discretion element was abolished, and people are no longer expected to hide their sexuality.
However, some research, including the SOGICA Project at the University of Sussex, has found that “‘discretion reasoning’ persists in the assumption that it is reasonable to return to their countries of origin claimants who would ‘choose’ to hide their sexual orientation or gender identity for reasons other than persecution, such as social customs.” This means that even though the discretion element is no longer accepted, it could still be applied in cases where the asylum applicant is perceived to be “choos[ing]” to hide their sexual orientation for other reasons, and not due to their fear of being persecuted.
Interpreting Your Story
When someone applies for asylum, they also undergo several asylum interviews, during which they mustnarrate their story, explain their fear, experiences, and the reasons they fled their country, along with other details. However, during this practice, asylum seekers may have an interpreter if needed. This process might seem easy, but when someone looks more closely, there are many discrepancies and problematic aspects to consider, especially for themes such as sexual and gender diversity.
There have been instances where interviewees felt discriminated against because of their sexual orientation or gender identity during the interview proceedings. Asylum seekers usually carry significant trauma and traumatic experiences. This trauma can come to light during legal proceedings, making it difficult for someone to feel welcome or safe enough to narrate their stories. People’s re-traumatisation and difficulty in articulating their stories have a real impact on their ability to express who they are, especially when they already struggle to prove their identities.
However, those types of abuse could become invisible, just because there is no one else who might speak the language present, apart from the interviewee and interviewer. Therefore, those types of abuse might not see the light of justice, but they certainly impact the decision-making process negatively. This struggle, along with their fear that an interpreter might also use offensive or unacceptable language or even misidentify someone, could lead to outcomes far worse than expected. It is critical to note that interpreters or interpreting services are not intentionally causing harm in their attempt to translate someone’s narrative. However, these services or any other service offered to people who indicate trauma and, more generally, should always be more cautious to ensure standards are met, and people feel safe enough to articulate their own stories.
Beyond Legal Standards: From the Burden of Proof to Social Justice
These examples demonstrate that the burden of proof is not just a legal requirement but also a lived burden and struggle for sexual and gender diverse people. From stereotypes on how a non-cis/heterosexual individual should behave or live, to the expectation that they could “choose” to hide their identity, to the complications of interpreting, these individuals face myriad obstacles in proving their identities. These barriers are just a few of the many, still very real and visible, that sit on top of a deeper problem: the lack of safe routes for people to seek protection, the need to take unsafe journeys, and the exposure of people to legal proceedings, including the burden of proof.
From a research perspective, it is beneficial to understand the interrelation between society and law, and, more generally, it is always intriguing to wonder whether and how law adequately reflects the society it governs. Engaging with these critical questions and dilemmas fosters deeper insights and contributes to a better understanding of society. However, normalising critical conversations and reflections on how law and society intersect should always go hand in hand with promoting social justice. Yet, any attempt to engage in critical conversations on these intersections, such as how sexual orientation and gender identity are assessed or should (or should not) be (or not) assessed, must always come with respect for human dignity and the rights of individuals.
Image Credit: Ross Burgess / Wikimedia Commons (CC BY-SA 3.0).
An amazing and important article