Paper: You are not gay enough; Proving sexual orientation and gender identity within the asylum regime; the credibility challenge In varying cultural expressions of sex and gender

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By Eric Gitari

In interpreting the 1951 Geneva Convention and its 1967 Protocol to protect LGBT refugees, the UNHCR has argued through its Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity that asylum authorities need to view being homosexual in any country where homosexual activity is outlawed as having reasonable grounds for fearing persecution and granting asylum. However, according to the interpretation and practice of most EU asylum countries, the applicant’s sexual orientation alone is not sufficient grounds for granting asylum.

Moreover, since sexual orientation is, in itself, very difficult for most asylum seekers to prove asylum seekers must prove their sexual orientation and then proceed to show persecution for that orientation or receipt of at least targeted specific threats in order to have reasonable grounds for fearing such persecution.

How do you prove sexual orientation of an asylum seeker? Is it by asking intrusive questions, testing their knowledge of a universal gay culture, or is it something you identify within their covet behavioral traits? This paper seeks to demonstrate how cultural variations in expressions of sexual orientation and gender identity by LGBTI asylum seekers from Africa often create credibility hurdles during resettlement case processing by receiving countries especially in the European Union whose asylum agencies often mirror and expect a universal expression of sexuality and gender.

The paper will analyze some of the recent EU asylum decisions involving African LGBT asylum with a view to uncovering in particular the subjective variables at play. The article examines how sexual orientation can be proven without equating visibility of one’s sexuality with the potential for anti homosexual persecution. It will then conclude by laying emphasis that asylum regime and practice in the EU needs to protect LGBT persons on the basis of their immutable sexual orientation and gender identity and must preclude the culturally flawed universal performance-as-identity model.

You Are Not Gay Enough; Proving Sexual Orientation and Gender Identity within the Asylum Regime; the Credi...

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