Immutability and LGBT Asylum

/ Eric van der Vort / Leave a comment

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.

That was the proposition being debated on the Intelligence Squared podcast. The debate originally occurred in 2011; however, it has a particular relevance today with the government is shutdown and the debt ceiling looming.

Moderated by ABC News’ John Donvan, this debate featured David Brooks–Op-Ed columnist for the New York Times–and Arianna Huffington–Co-Founder and Editor-in-Chief of The Huffington Post, who argued for the motion; and P.J. O’Rourke–H.L. Mencken Research Fellow at the Cato Institute and Zev Chafets–Former columnist, New York City News, who argued against it.

Here is description of the debate:

The Republican and Democratic parties are entrenched in calcified partisanship, where politics is played as a zero-sum game. The rise of the Tea Party, liberal backlash, and the exodus of moderate voices from Congress all point toward the public’s growing discontent. Has our two-party system failed us? Is this a call to change our two-party system of governance?

Is The Two-Party System is Making America Ungovernable?

/ Matthew Clemente / Leave a comment

In Memoriam: Ronald Coase

/ Edward Thater / Leave a comment

Nobel Laureate Ronald Coase died last month at the age of 102. I’m sure that most readers of this blog have never heard of Ronald Coase, and I’m equally sure that most of the few who have heard of him likely forgot his name less than an hour after completing their microeconomics exam. Coase was one of the founders of the Law and Economics movement, the goal of which is to encourage more economic analysis when crafting legal rules. As a law student whose pre-law graduate work was primarily in economics, I have a lot of respect for Coase and feel the need to spread his legacy to a wider audience.

Coase’s most notable contribution to economic theory was in the analysis of externalities, an economic concept I will attempt to briefly explain. Markets are essentially social price-setting mechanisms, and when everything is working well, a market will set a price that balances the costs of producing a good with the benefits of consuming that good. This, in turn, ensures an economically efficient distribution of resources. However, markets can only do that when all the costs and benefits are factored into the transaction. Sometimes, costs and benefits of the transaction are external to market participants. The classic example of a negative externality is pollution. If a factory can dump its waste in a nearby stream for free, the management doesn’t account for the effects of this water pollution when deciding its prices. Thus, because the market price of the factory’s goods does not factor in the very real social cost of production, there will be inefficient overproduction by the factory, while the public who bears the cost of the water pollution go uncompensated.

Before Coase, the standard economic solution to this problem was to impose a suitably high tax so that the producer would internalize the external costs. Either the producer would modify its behavior to account for the true cost of production, or it would provide a revenue stream to compensate the victims of the negative externality. Coase, however, turned the traditional analysis on its head by noting that the real problem here is that the different parties both want to use the same resource for different purposes.

Coase gave the example of a doctor and a confectioner who have adjacent offices. During the day when the doctor is trying to see patients, the confectioner uses machinery that makes loud noises and causes vibrations sufficient to disturb the doctor next door. Coase said the problem is not that there is a social cost imposed by the confectioner that must be taxed away, but rather that both the doctor and the confectioner want to use the same space for their two businesses in ways that are incompatible. It is true that the confectioner is disturbing the doctor’s practice with his noise. However, it is equally true that the doctor’s practice is disturbed by the noise only because it’s located next to the confectioner.

Coase’s real genius was in his solution to this problem. Under Coase’s analysis, the parties themselves can negotiate an economically efficient solution without any outside help. Let’s say that, in our example, the doctor has the right to force the confectioner to stop running the machinery and making the noise. The confectioner can instead offer to pay the doctor to move to a new office. If the confectioner derives greater economic value from the location than the doctor does, they should be able to come to a mutually agreeable price that will get the doctor to agree to move. If, however, the doctor derives greater economic value from the location, no price the confectioner is willing to pay will be enough to convince the doctor to leave, so the confectioner will have to find a new place to ply his trade. In either case, the solution is economically efficient because the externality is resolved while the party who derives the greater economic value gets to stay. The exact same analysis would apply, only in reverse, if the confectioner had the right to make as much noise as he wanted and the doctor attempted to pay the confectioner to move.

Unfortunately, Coase’s elegant solution, which is called the Coase theorem, only works if there are well defined property rights (e.g., either the doctor has a clear right to stop the confectioner’s noise or the confection has a clear right to make noise) and if there are relatively low transaction costs (e.g., there are only a few parties, all of whom are willing to negotiate in good faith). This doesn’t happen as often with real life externalities as we would like. Nonetheless, it’s a great example of how a simple change in perspective can suggest a new solution to an old problem that is revolutionary in its time, only to become common sense a generation or two later. In my book, that is a legacy worth remembering.