Guest post by Gursimran Kaur Bakshi, National University Of Study And Research In Law, Ranchi. 

I am what I am, so take me as I am.

-Johann Wolfgang (German Thinker)

Introduction

On 16 July 2020, in the significant ruling of Rana v. Hungary, the European Court of Human Rights observed, unanimously, that the lack of legal capacity to change one’s gender and name violates the right to self-determination. Furthermore, it was argued that the use of medical examination to prove one’s Sexual Orientation and Gender Identity (SOGI) violates their right to privacy enshrined in Article 8 of the European Convention on Human Rights (ECHR).

This post questions the legitimacy of medical examinations on Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI+) people to assess their SOGI claims of asylum (SOGICA). The European Union’s (EU) Qualification Directive 2011/95 /EU (Directive) duly acknowledges the fact that asylum-seekers in many situations cannot furnish evidence of their ill-treatment in their country of origin (COI). Hence, certain parts of their asylum application cannot be determined objectively through documentary evidence.

Notably, Article 4(5) of the Directive denotes that in the absence of documentary evidence to be submitted by the applicant, the following conditions need to be taken care off- applicants’ genuine efforts to substantiate the application, satisfactory explanation in the absence of evidence, persecution story does not contradict the information available about his home state, and general credibility of the applicant is established. Article 4 of the Directive allows authorities to adopt methods for the individual assessment of facts, statements, and other aspects of the asylum application, when an applicant is unable to furnish evidence. This includes information on COI, relevant statements and documents showing whether the applicant has been subjected to persecution, determination of personal factors such as background and gender to name a few.

In this context, many countries like the Czech Republic and Hungary have subjected LGBTI+ asylum-seekers to various forms of medical examinations to decide the credibility of their SOGICA. ‘Fleeing Homophobia’, a report by Sabine Jansen & Thomas Spijkerboer, observes that in the context of asylum Europe still categorises LGBTI+ identities in medical, psychiatric and psychological terms.

Testing the Untestable

In 2010, the Czech Republic and Slovenia introduced the use of Penile Plethysmographic tests or arousal tests on Gay men to determine their SOGICA. Plethysmography is an instrument used to measure the change in the size of genitals either from a change in the genital blood flow or from the volume of the surrounding air in response to sexually explicit audio or visual stimuli using conductors attached to the genitals. These tests have been used in erectile dysfunction examinations, and to treat dyspareunia or even to ‘treat’ sex offenders. Notably, in none of the cases the effectiveness of these measures has been backed by scientific evidence.

In 2017, Hungary’s use of  Projective Personality tests (‘PPTs’) namely Draw-A-Person-In-the-Rain, Rorschach, and Szondi Tests on LGBTI+ asylum-seekers came into limelight when an asylum-seeker F from Nigeria challenged its legality before the European Court of Justice (ECJ) in F v Bevándorlási és Állampolgársági Hivatal.

According to F, these tests were imposed on him during the asylum assessment procedure by Hungary’s Immigration Office. These tests often termed as dubious are used to assess the personality traits, emotional-being and mental ability of an individual. F’s asylum claim was rejected on the ground that his application lacked credibility based on the results of PPTs. This was despite the fact that F’s persecution story was not fundamentally contradictory and that he gave satisfactory information on his COI where homosexuality is punished with death.

The court referred to the case of X, Y and Z v. Minister voor Immigratie en Asiel wherein persecution based on membership of a Particular Social Group (PSG) was recognised as a ground for an asylum claim for the first time by ECJ. However, to prove membership of a PSG comes with its own inherent limitations as sexual orientation and gender identity are subjective in nature and cannot be proved through material evidence. They are, in fact, a matter of self-identification (see Article 3 of the Yogyakarta Principles along with International Protection No.9 of UNHCR).

The court did not comment on the reliability of medical tests in general. However, it held that the production and use of PPTs on F as a conclusive evidence amounted to torture and degrading treatment. Moreover, his consent was conditional as his life was dependent on the test results.

Concluding remarks

Despite good practices including guidelines on SOGICA by the United Kingdom, Berlin’s Model for Support to LGBTI+ asylum seekers,  the tool for the identification of persons with special needs, and Practitioners’ Guide by ICJ, the reality on the ground seems strikingly unfortunate. A recent report reveals that one third of the asylum claims in Europe are rejected by decision-makers on the inability of the applicant to furnish evidence of one’s sexuality. It is often the case that authorities ignore or overlook the persecution histories of LGBTI+ asylum seekers. Prejudiced notions of sexuality and the inability to provide proof often outweigh other things in an assessment procedure. For example, many LGTBI+ asylum seekers are subjected to intrusive questions like- ‘Do you use sex toys?’ or ‘You do not look like a Lesbian. More than anything, it is time we found ways to save LGBTI+ asylum seekers from double marginality of being a member of the LBGTI+ group and an asylum-seeker.

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How to cite this blog post (Harvard style) 

Bakshi, G. K. (2020). What’s in Sexuality? The Right to Privacy of LGBTI+ Asylum Seekers. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/10/whats-sexuality [date]