On March 20, the Judicial Division of the Netherlands Council of State referred three cases concerning asylum seekers who claim to have been persecuted on account of their sexual orientation to the Court of Justice for a preliminary ruling. Pursuant to Article 10(1)(d) Qualification Directive, groups with a common characteristic of sexual orientation may fall within the ambit of the minimum level of protection afforded by European asylum law. However, during the initial procedure the asylum seekers concerned failed to convince the Dutch immigration service that they were gay and their application was subsequently denied.
On appeal, their lawyers argued that the mere statement that one is gay, lesbian or bisexual is sufficient proof of an asylum seeker’s sexual orientation. Moreover, the lawyers submitted, any further verification of their sexuality is contrary to, inter alia, Articles 3 and 7 of the Charter of Fundamental Rights. The Council of State accepted that some questions pertaining to the way in which the applicant experiences, sexually or otherwise, his sexual orientation or how and when the applicant became aware of his sexual orientation may be contrary to the right to personal integrity (art. 3 (1) Charter) and the right to private life as guaranteed in Articles 3 and 7 of the Charter of Fundamental Rights and asked the CJEU for guidance on this point. In this post, I will use queer theory in an attempt to substantiate the argument that verification ought to be considered contrary to human rights standards.
The three problems of verifying sexual orientation
This preliminary reference reflects the increasing awareness of the distinct challenges that refugees persecuted on account of their sexual orientation face vis-à-vis other groups. For example, last year the Dutch Council of State already asked whether a decision to deny an application with the argument that an asylum seeker may avoid persecution in their home country by remaining discreet about their sexual orientation is contrary to EU law or not. In other words: whether EU law prohibits that asylum seekers are send back into the closet by Member States. In the same judgement, it also asked whether lesbian, gay or bi asylum seekers can be returned to countries where same sex sexual activities are a criminal offense. This reference is still pending before the Court. The Council of State is now asking the Court to deal with another sensitive topic: what methods are allowed to verify the sexual orientation of an asylum seeker?
Verification of sexual orientation entails a number of problematic aspects on three levels, namely: the individual case, the conceptual and the societal level.
Intimate Questioning and “The Normal Homosexual”
Turning first to the individual cases. Research into the way in which sexual orientation in individual cases is verified in Australia, New Zealand, the United Kingdom, Canada and the Netherlands has shown that it may involve inappropriate questioning and is subject to a certain degree of prejudice and bias.
An example of inappropriate questioning is illustrated in a Dutch case in which an applicant was asked to give details of sexual intercourse and the subsequent finding that the applicant had lied about his sexual orientation because he did not tell what position he took in bed. Such questioning is clearly contrary to international standards and thankfully rare in the Netherlands. The decision was quashed on appeal.
However, other types of prejudice are more common. Questions asked and conclusions inferred from answers indicate that immigration officers tend to compare the statements of applicants to their expectations of what is “normal” for gay, lesbian, bisexual, transgender or intersex people.
For example, a Dutch official would not accept that a Pakistani youth did not really worry about his attraction to other men. The official held that ‘at no time [did the applicant] immersed himself into the question what it means to be homosexual’ and that ‘at no time [did] he experience an inner struggle’. According to the official this was particularly odd because he was raised ‘with the societal notion that homosexuality is bad’.
Although in itself not inappropriate questioning, the official betrayed that she had a biased expectation of what a “typical” homosexual person experiences. Indeed, the District Court quashed the decision on the basis that ‘nothing was adduced to support the contention that from homosexuals from a society like Pakistan may be expected to go through a phase of inner struggle.’
What is sexual orientation anyway?
This leads us to the second problem that occurs with verifying sexuality: that of conceptualization. The biased expectations about sexuality found in individual cases stems from fundamental questions about how to understand sexual orientation. What does it constitute? What do people experience? What meaning do people give to these experiences? How to express this in legal and policy terms?
The Yogyakarta principles appear to give some guidance in this: sexual orientation is understood by the preamble to “refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.” The UNHCR and the Dutch Immigration Service use similar language.
This is very broad, but does not make clear what is experienced exactly, which in practice is what verification turns to. In other words, in order to verify membership of a category, that category needs to be conceptualized. However, here we encounter a major problem, which is aptly described by queer theorist Eve Sedgwick. She argued that sexuality is so complex that it cannot be understood and defined by anyone but the subject self. In other words, the experiences of a person are exclusively personal. This makes it hard to compare these experiences and describe them in general terms. And even if these experiences can be compared, the way in which persons will express them through language and actions is again very personal.
At the same time, the way in which experiences are expressed is also shaped by culture. In modern Western societies we tend talk of straight, gay, lesbian, bisexual people to understand and categorize their experiences into distinct identities. The problem for the asylum context will be obvious: the meaning and expression given to experiences will differ from culture to culture and age to age. With this ambiguity, conceptualization of sexual orientation becomes hard and attempts to do so may lead to decision on the individual case level that are biased through personal and cultural conceptions of sexuality.
The societal problem
The perceived need to conceptualize is not only in play in the asylum context but in all kinds of contexts. Eve Sedgwick observes that despite its personal nature, sexual orientation has become a question of authority and evidence in our society. By this, she means that a “coming out” may not be accepted by others as being genuine if the individual bases this on only a few feelings, but no actions or, conversely, on a few actions, but not feelings. In other words, the authority of definition does not lie with the subject but with others.
Sexual orientation is such a central theme in the perception of a personality that it needs to be defined. Thus, a coming-out, i.e. a claim that the default assumption that a person is heterosexual is untrue, needs to be proven: people experience a desire to understand the personality of persons in their immediate vicinity, in other words they experience a need to box people. However, the number boxes available are limited and rather stable and narrowly defined: straight, gay, lesbian, bisexual.
Accordingly, a person who claims to be straight needs to act in conformity of what their environment perceives to be normal for a straight person. Conversely, a gay person will do the same mutatis mutandis. As a consequence, any experience that is not on line with this expectation is suppressed and people let themselves confined to boxes and restrict their acts accordingly, with the result that they are defined in their identity and actions by others.
Eve Sedgwick turns against this dynamic, this ceding of authority of naming and behaving to others, as it interferes with their autonomy of behavior. She argues that the authority to define should be returned to the individual concerned. Obviously, this is exactly what the immigration service opposes to do when it engages into a process of verifying the sexual orientation of asylum seekers. In other words, the argument by the three lawyers in the case at hand that verification is contrary to the human dignity, integrity, and private life protected by the Charter finds support in queer approaches to individual autonomy.
Obviously, the major challenge that lawyers face is not only to connect queer theory to human rights, but also to embed them into one and another. Certain doctrinal innovations may have to be made in order for the Court to impose such heavy restrictions on the verification process. This falls beyond the scope of today’s post, which only serves to illustrate one of the complexities surrounding sexual orientation in the asylum context.
What can they ask?
If the CJEU were to accept the human rights argument put forward, what other avenues are available to verify narratives? It should be noted that in a number of Member States, the applicant’s statement that they have an alternative sexual orientation is considered the starting point and carries much weight.
Verification may focus more on other aspects of the narrative than on whether the applicant is really gay. A good alternative is to focus more on aspects of the claimant’s life that have resulted from having an alternative sexual orientation and not the sexual orientation itself: experience of non-conformity; the experience of being different; relationships with family, friends and the wider community and any persecutors amongst them; romantic and sexual relationships; religion and acts of persecution may all serve to verify his narrative without having to engage into a discussion whether the applicant is gay or not. After all, perceived membership of a particular social group already satisfies the requirement. A consistent and coherent narrative may develop out of this. Or not. At least the problems described above are largely avoided.
 See for a comprehensive study of these issues Thomas Spijkerboer and Sabine Jansen, Fleeing Homophobia. Asylum Claims Related to Sexual Orientation and Gender Identity in Europe, VU University 2011. Available at: www.rechten.vu.nl/fleeinghomophobia
 Millbank, J. (2009) ‘From discretion to disbelief: recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom’, International Journal of Human Rights, 13(2/3): 391–414; Berg, L. and Millbank, J. (2009) ‘Constructing the personal narratives of lesbian, gay and bisexual asylum claimants’, Journal of Refugee Studies, 20: 195–223; Middelkoop, L.P. (Forthcoming 2013) Normativity and credibility of sexual orientation in asylum decision making, in Spijkerboer, T.P., Fleeing Homophobia, Oxford: Routledge.
 Middelkoop 2013.
 Spijkerboer and Jansen (2011), p. 52 mention Portugal, Italy and the United Kingdom.