There are long-standing debates about the causes of homosexuality, if indeed any exist. Though the most current research of which this author is aware suggests that, rather than being the result of any one factor (e.g. a single genetic cause), it may be a confluence of factors, the more important and, in my view, the more interesting fact is that the biological, sociological and psychological underpinnings of sexual orientation and gender identity have important ramifications for legal and policy debates about how governments should deal with sexuality.
As the Western world has embraced the rights of gender and sexual minorities with surprising alacrity, one issue that has confronted several governments has been immigration of members of these identity communities. Particularly as domestic rights have expanded in some countries while others have remained discriminatory or hostile toward LGBT individuals within their borders, questions of immigration and asylum have sometimes become quite prominent. While many Western states have (relatively) clear standards for those seeking asylum on the basis of discrimination or persecution in their home countries, these standards often require that individuals be members of particular ethnic, racial or religious groups that are easily idenified, quantified and understood. The pursuit of asylum status on the basis of sexual orientation and gender identity can be more complex because of the standards in law about what precisely counts as an identity.
A related example is somewhat instructive: in American equal protection jurisprudence, the most stringent standards for equal protection adhere to classifications making use of groups that fall under a suspect classification. Some of the criteria that serve to qualify a group for this ‘suspect classification’ status include (1) a history of discrimination, (2) an immutable or highly visible characteristic, (3) political powerlessness and (4) no relation between the classification in question and the ability to contribute to political, economic and social life. When a group is considered a suspect class, any legal classification using that category of persons is subject to strict scrutiny. Legal classifications in the U.S. that currently meet this standard include any making use of race, national origin, alienage and (by some interpretations) religion. Each of these four classifications shares some level of the above criteria, but one above all others stands out as uniting them: the immutability of the classification. Immutability in American law is an essentially biological characteristic: individuals have no control over the circumstances of their birth and, thus, legal classifications that rely on such groupings are invalid.
In light of this immutability doctrine, one can begin to tease out the logical difficulty of treating sexuality as a suspect classification. Assuming an acceptance of this particular scheme (developed by the Supreme Court over several decades), sexual orientation and gender identity do not seem to match the requirements. While other characteristics may be subject to debate (histories of discrimination, political powerlessness and so on), there is something about sexuality which remains harder to pin down and quantify in easy terms. Even birth gender, which stands as a quasi-suspect classification, is a matter of biology, at least in law. The fluidity of sexuality and gender identity lead some observers to conclude that they cannot serve as the basis of any kind of suspect classification, thus requiring either a separate legal standard or no legal protections at all, at least any more than is afforded to any other group.
This brief foray into constitutional law is instructive to the matter of LGBT asylum seekers and refugees. While the United States and other Western countries have accepted claims for asylum on the basis of discrimination and persecution because of sexual orientation and gender identity, this remains one of the areas where bureaucracies continue to have some difficulty. Petitions have been denied in the United States and United Kingdom in recent years, and the issue has risen again as groups have pressured governments in the West to open doors to Russian asylum seekers. This has challenged bureaucrats, who are tasked with distinguishing between individuals genuinely seeking asylum and those who are simply seeking entry to a particular country with “false” claims.
A recent report by the Home Affairs Committee in the United Kingdom has shed light on the situation facing LGBT asylum-seekers not only in the U.K. but elsewhere. The BBC reports that some asylum-seekers in the U.K. have, because of seemingly skeptical officials, resorted to submitting evidence of same-sex sexual behavior to ‘prove’ their sexual orientation or gender identity as evidence for their asylum petitions:
The report said: “The battleground is now firmly centered in ‘proving’ that they are gay. In turn, this has led to claimants going to extreme lengths to try and meet the new demands of credibility assessment in this area, including the submission of photographic and video evidence of highly personal sexual activity to caseworkers, presenting officers and the judiciary.”
The committee said: “We were concerned to hear that the decision making process for LGBTI applicants relies so heavily on anecdotal evidence and ‘proving that they are gay’.”
It added that “it is not appropriate to force people to prove their sexuality if there is a perception that they are gay. The assessment of credibility is an area of weakness within the British asylum system.
Such reports, if accurate, are highly troubling for those of us concerned with the rights of gender and sexual minorities. They reflect a return to a way of thinking that places weight not on an individual’s identity but on an individual’s actions, the propensity toward (and actualization of) same-sex sexual desires or “genuine” evidence of gender non-conforming behavior and identity. As sexual orientation is not, like the immutable characteristics comprehended by the U.S. Supreme Court, a highly visible characteristic and may in fact be fluid, the weight of an asylum seeker’s identity may be placed on actual conduct. Much of the work by the LGBT community and its allies has been to reject this older, arguably outmoded view of sexuality. Yet it seems that some asylum-seekers are doubly burdened, having to prove discrimination or persecution and having to prove that the basis of that discrimination is in fact real.