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University of Technology Sydney Law Research Series |
Last Updated: 10 April 2017
THE RIGHT OF LESBIANS AND GAY MEN TO LIVE FREELY, OPENLY, AND ON EQUAL TERMS IS NOT BAD LAW: A REPLY TO HATHAWAY AND POBJOY
JENNI MILLBANK*
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I.
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INTRODUCTION ..................................
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497
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II.
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WHAT IS WRONG WITH A BIT OF DISCRETION .....
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501
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III.
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ACTIVITIES AND NEXUS ..........................
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510
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IV.
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TRIVIAL ACTS AND PROTECTED IDENTITIES ........
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512
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V.
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THE CALL TO CIRCUMSCRIPTION .................
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515
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VI.
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MISREADING HJ AND HT : KYLIE MINOGUE AS A
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STRAW MAN .....................................
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522
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VII.
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CONCLUSION ....................................
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525
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It is only in recent history that those persecuted on the basis of sexual orientation and gender identity have been viewed by the majority of refugee-receiving nations as eligible to claim protection under the Refugee Convention. Over the past twenty-five years, lesbian, gay, bisexual, and transgender claimants, as well as their advisors, non-government organiza- tions and scholars working on their behalf, have struggled to establish sexual orientation as an accepted particular social group (PSG),1 and to develop nuanced and appropriate perse-
* Professor of Law, University of Technology Sydney. This research is supported by grant DP 120102025 from the Australian Research Council. Thanks to Laurie Berg, S. Chelvan, Sabine Jansen and Janna Weßels for their comments.
497
cution analysis addressing sexuality and gender identity claims. This has been a significant challenge. Barriers have included: failure to recognize that criminalization of gay sex is persecu- tory2 (as well as the related but distinct concern that criminal sanctions may generate a persecutory environment, even in the absence of evidence of recent or systematic enforce- ment);3 reluctance to accept that non-state actors are often the primary agents of harm;4 lack of appropriately targeted and analyzed country of origin information;5 on-going issues with
states within the Council of Europe explicitly recognized sexual orientation as a PSG in either their national legislation or case law. COUNCIL OF EUR. COMM’R FOR HUMAN RIGHTS, DISCRIMINATION ON GROUNDS OF SEXUAL ORIEN- TATION AND GENDER IDENTITY IN EUROPE 65 (2011).
the inappropriate assessment of credibility in the claimed sex- ual identity;6 and the so-called “discretion” approach whereby persecution must be avoided rather than protected against.7 Gains in dismantling these barriers have been hard won, with many validly based sexual orientation claims dismissed in the meantime.8 In 2008, the United Nations High Commissioner for Refugees (UNHCR) issued a guidance note addressing the above concerns,9 a recognition in itself that although the juris- prudence and practice of some receiving countries now deal appropriately and equitably with sexual orientation claims, many still do not.
ONGOING CHALLENGE FOR THE CANADIAN REFUGEE DETERMINATION PROCESS,
13 INT’L J. HUM. RTS. 437, 462 (2009); Dauvergne & Millbank, supra note 2,
at 340–42.
In this short note, I address Hathaway and Pobjoy’s cri- tique of the decisions of the High Court of Australia and Su- preme Court of the United Kingdom, respectively, in S39510 and HJ and HT.11 These cases represent the two highest-level judicial determinations in the world to address gay refugee claims to date. While neither decision is beyond criticism,12 the cases both separately and together advance the develop- ment of refugee jurisprudence on sexuality in major ways. These decisions emphatically reject discretion reasoning, af- firm that the experience of sexual orientation extends beyond mere private sexual conduct, and articulate the importance of equality—both as between gay and straight people in the country of origin and between sexuality claims and other cate- gories of claimants in the receiving country—in applying the protections of refugee law.
In Part III of their article in this special issue, Hathaway and Pobjoy claim that S395 and HJ and HT, in articulating a right to live freely and openly, have taken an “all-embracing formulation” to “action-based risks” associated with sexual ori- entation.13 The judgments, they say, “seem to assume that risk following from any ‘gay’ form of behavior gives rise to refugee status.”14 The authors argue to the contrary that refugee law should “draw a line” to only protect actions deemed integral to
10. S395 216 CLR at 473.
J. INT’L L. & POL. 315, 374 (2011). In Part I of their article, Hathaway and Pobjoy argue that the decisions were incorrect because an implausible risk cannot be (or should not have been found to be) real. Id. at 340–46. This argument is misplaced for the very reason that adjudicators using discretion reasoning have failed to undertake a forward-looking analysis of what risks are faced and whether they are real, instead relying on categorical assump- tions that secrecy and safety are synonymous. In Part II of their article, Hathaway and Pobjoy draw on S395 to make a case for the legal recognition of “endogenous harm,” the psychological harm of self-repression and fearful concealment, as a distinct aspect of persecution. Id. at 346–58. This is a novel and well-made argument that I do not have space to address here.
14. Id. at 374.
sexual orientation and not those that are deemed peripheral, trivial or stereotypical. The premise of Hathaway and Pobjoy’s piece—that the two highest-level judgments to affirm equality for sexual orientation refugee claimants have gone too far— merits pause. I contend that Hathaway and Pobjoy’s argument is both wrong in principle and dangerous in practice.
Below, I outline the “problem” of discretion and how S395 and HJ and HT responded. Then, I argue in the two fol- lowing sections that Hathaway and Pobjoy’s claims rest upon a misleading and unsustainable act/identity distinction (com- prising equally unsustainable binaries of integral/peripheral and necessary/voluntary acts). This premise informs their pur- ported separation of protected from unprotected acts in their discussion of discrimination in analyzing nexus, and ultimately obscures the relationship between sexual orientation and gen- der identity to rights claims grounded in equal access to free- doms of expression, association, privacy and family life. Next, I demonstrate through analysis of previous jurisprudential de- velopments in the United Kingdom that Hathaway and Pobjoy’s proposed test of limiting protection only to activities “reasonably required” to express sexual orientation is highly susceptible to misapplication in practice. Finally, I suggest that Hathaway and Pobjoy’s discussion of HJ and HT is clouded by an overreaction to a single line in Lord Rodger’s judgment. I contend that the case can, and should, be read as a princi- pled decision on equality of protection under the Refugee Convention.
ralness, and legal correctness of concealing lesbian, gay, and bisexual identity is one of, if not the, most significant and resil- ient barriers to the fair adjudication of sexual orientation based refugee claims worldwide to date. While variously ex- pressed,15 “discretion reasoning” involves a “reasonable expec-
tation that persons should, to the extent that it is possible, co- operate in their own protection.”16 “Discretion” may be articu- lated as a normative standard or requirement of “reasonable- ness”17 but is often embedded as an assumption or factual finding that behavioral “modification,” “restraint” or “adapta- tion” will simply “happen.” There is often a narrow line in de- terminations between what is “expected” as a finding of fact, and required as a matter of law.18
linity in Gay Asylum Claims[2005] YaleLawJl 23; , 114 YALE L.J. 913 (2005) (considering U.S. cases where applicants’ sexuality was not readily identifiable). Visibility also in- creasingly appears in U.S. jurisprudence requiring collective “social visibil- ity” in order to define a PSG. This may lead to the finding that there is no PSG at all in sending countries where the entire class of applicants are clos- eted and the broader society disclaims their existence. Fatma E. Marouf, The Emerging Importance of “Social Visibility” in Defining a “Particular Social Group” and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gen- der, 27 YALE L. & POL’Y REV. 47, 79–88 (2008); see Brian Soucek, Social Group Asylum Claims: A Second Look at the New Visibility Requirement, 29 YALE L. & POL’Y REV. 337 (2011) (arguing there are two interpretations of the “social visibility” requirement—metaphorical or literal—and it is incorrect to apply the literal approach, which requires that a PSG is based on a visibly recogniz- able trait). The BIA requirement of “social visibility” was stringently criti- cized by the Court of Appeals in the Seventh Circuit, Benitez Ramos v. Holder, 589 F.3d 426, 430 (7th Cir. 2009). However, the “social visibility” approach was recently upheld by the Court of Appeals in the Tenth Circuit, Rivera-Barrientos v. Holder, 658 F.3d 1222 (10th Cir. 2011), despite being contrary to UNHCR policy guidance and to the submissions of UNHCR in- tervening in that case. See U.N. High Comm’r for Refugees, Guidelines on International Protection No 2: “Membership of a Particular Social Group” Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 11, 13, U.N. Doc. HCR/GIP/ 02/02 (May 7, 2002); Brief for the United Nations High Comm’r for Refu- gees as Amicus Curiae in Support of Petitioner, Rivera-Barrientos v. Holder, 658 F.3d at 1222. The “visibility” approach has also been taken in France, with troubling results for GLB. FLEEING HOMOPHOBIA REPORT, supra note 3, at 36.
The content of “discretion” is rarely spelt out. Expressed misleadingly as a matter of good manners or natural choice, it implicitly involves lifelong secrecy and all-encompassing strate- gies of concealment and deception.19 “Discretion” in refugee law has included fact situations in which applicants have been expected to never tell anyone they are gay,20 avoid any behav- ior which would identify them as gay,21 relocate in order to
as a finding of what would rather than what should happen. Id. See also “the requirement to be careful in future” in the second tribunal determination in HJ and HT, quoted on review in HT (Cameroon) v. Sec’y of State for the Home Dep’t, [2008] EWCA (Civ) 1288, [8] (appeal taken from Asylum & Immigr. Trib.) (U.K.) and characterized by the Court as a requirement. Id. [6]. Lord Justice Pill also refers to the “requirement to respect social standards.” HJ (Iran) v. Sec’y of State for the Home Department, [2009] EWCA (Civ) 172, [36][2009] EWCA Civ 172; , [2009] Imm. A.R. 600 (Pill L.J.) (appeal taken from Asylum & Immigr. Trib.) (U.K.). Lord Hope notes this slippage between factual and normative “expectation.” HJ (Iran) v. Sec’y of State for the Home Dep’t (HJ and HT), [2010] UKSC 31, [27], [29][2010] UKSC 31; , [2011] 1 A.C. 596, 627–28 (Lord
Hope of Craighead) (appeal taken from Eng. & Wales C.A.). The U.K. Bor- der Agency implicitly acknowledged the normative aspect of the discretion approach in its revised guidance following HJ and HT: “Applications should therefore not be approached from the assumption that individuals could exercise discretion in order to avoid persecution.” U.K. BORDER AGENCY, SEXUAL ORIENTATION IN THE ASYLUM CLAIM 12 (2011), available at http://
www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylum policyinstructions/apis/sexual-orientation-gender-ident?view=Binary.
. . . be an infringement of a fundamental human right to be obliged to sup- press one’s sexuality, it does not follow that it is an infringement of a funda- mental human right if one is required, for safety’s sake, simply not to pro- claim that sexuality openly. I do not believe there is a fundamental human right to proclaim one’s sexuality openly”); N01/40155 [2003] RRTA 138 (Austl.) (refusing refugee application in part because applicant lived a “quiet” life in Ghana and rejecting applicant’s claim that he would tell po- tential employers about his sexual identity). In later U.K. cases, such con- duct was characterized as “provok[ing]” public “outrage.” JM Homosexuality, [2008] UKAIT 00065, [148], [149]. The tribunal dismissively held, despite the applicant’s express wish for openness, he was not “somebody who is rea- sonably likely to proclaim his homosexuality to all and sundry whom he meets or to taxi drivers in the course of a journey.” Id. [148].
“attain the invisibility,”22 only have anonymous sex in public places,23 pretend that their partner is a flatmate,24 or remain celibate.25 Time and again, refugee adjudicators have held that a life of fearful concealment for lesbians and gay men “will not cause significant detriment to [the] right to respect for private life, nor will it involve suppression of many aspects of [their] sexual identity.”26
Discretion logic is a particularly invidious form of victim blaming because it affirms the perspective, if not the conduct, of the persecutor. In the words of Lord Justice Pill at Court of Appeal level in HJ and HT, according
a degree of respect for social norms and religious be- liefs in other states is in my view appropriate. Both in Muslim Iran and Roman Catholic Cameroon, strong views are genuinely held about homosexual practices. In considering what is reasonably tolerable in a par-
Home Dep’t, [2000] UKIAT 00TH01419 (U.K.); T v. Special Immigration Adjudicator, [2000] EWJ 3020 (U.K.); Dumitru v. Sec’y of State for the Home Dep’t, [2000] UKIAT 00TH00945 (U.K.).
ticular society, the fact-finding Tribunal is in my view entitled to have regard to the beliefs held there.27
Discretion reasoning has generated a plethora of legal er- rors in persecution analysis, including: reversing the onus of Convention protection, treating the scope of protection of- fered by the Convention grounds inequitably, distorting credi- bility assessment,28 and construing internal flight alternatives as opportunities for re-concealment rather than safety.29 It also leads to errors in defining the PSG, by treating “discreet” and “open” homosexuals as if they are two completely distinct,
v. Sec’y of State for the Home Dep’t (HJ and HT), [2010] UKSC 31, [129][2010] UKSC 31; , [2011] 1 A.C. 596, 661 (appeal taken from Eng. & Wales C.A.). See also JM v. Sec’y of State for the Home Dep’t (JM Homosexuality), [2008] UKAIT 00065, [149] (U.K.) (finding that a gay applicant from Uganda will be “mindful of his society’s concepts of good manners and the general social mores” in con- cealing his sexuality); MK v. Sec’y of State for the Home Dep’t (MK Lesbi- ans), [2009] UKAIT 00036, [384] (U.K.) (stating that a relevant factor in determining what was reasonably tolerable included “the social norms and religious beliefs commonly held in Albania”).
stable, and mutually exclusive groups.30 These errors are com- pounded in a future-focused analysis of the risk of persecution for the fundamental reason that there is no such thing as a complete and lifelong closet. A person may be closeted for some purposes or in certain spheres (work but not family, fam- ily but not friends, some friends but not all31), and even those assiduously committed to concealment are always at risk of ex- posure through the disclosures of others, or surveillance, and through their own lack of conformity to heterosexual behav- ioral norms over time, for example, if they do not marry and raise children by a certain age.32
Discretion reasoning is extraordinarily widespread, resis- tant to challenge and strongly associated with high rejection rates for lesbian, gay and bisexual refugee claims.33 In 2011 the Fleeing Homophobia study, examining practices across the European Union, found discretion reasoning still occurring in Austria, Belgium, Bulgaria, Cyprus, Denmark, Finland, France, Germany, Hungary, Ireland, the Netherlands, Malta, Poland, Romania, Spain, Norway, and Switzerland.34
Discretion reasoning has appeared, and been challenged, since the very first cases on sexual orientation. In cases deter- mined in Germany in the 1980s and in Canada, Australia, and New Zealand in the 1990s, several low-level decision makers rejected discretion in forceful terms.35 It is notable that such reasoning rarely appeared again in Canada and New Zealand,
supra note 8, at 4–5.
yet it remained prevalent in German and Australian decisions and, indeed, was subsequently endorsed at the appellate level in Australia in 2002, when a unanimous Full Court of the Fed- eral Court of Australia held that the “public manifestation of homosexuality is not an essential part of being homosexual,” nor is the ability to “proclaim one’s sexual preference an es- sential right.”36 In the United Kingdom, discretion reasoning was commonplace and rarely queried until the mid-2000s.37
In the 2000s, the discretion approach was rejected at high levels in a number of judicial and policy settings. In 2003, in S395, a slim majority of the High Court of Australia held that it was incorrect in law to require or expect gay men to “take rea- sonable steps to avoid persecutory harm”38 as this would “un- dermine the object of the Convention if the signatory coun- tries required them to modify their beliefs . . . or to hide.”39 The majority judgments affirmed that the experience of sexual identity is not confined “to particular sexual acts [and will often] extend to many aspects of human relationships and ac- tivity.”40 In 2005 and 2007, respectively, Sweden and the Netherlands amended administrative policy guidance for adju- dicators to instruct that lesbians and gay men could not be required or expected to hide their sexuality in their countries of origin.41 In 2008, the UNHCR stated that there is no “duty”
E.W.C.A. (Civ) 57 (appeal taken from Asylum & Immigr. Trib.) (U.K.)).
(S395) [2003] HCA 71; (2003) 216 CLR 473, 492 (McHugh & Kirby JJ) (Austl.).
Subject to the law, each person is free to associate with any other person and to act as he or she pleases, however much other individ- uals or groups may disapprove of that person’s associations or par- ticular mode of life. This is the underlying assumption of the rule of law. Subject to the law of the society in which they live, homosex- uals as well as heterosexuals are free to associate with such persons as they wish and to live as they please.
Id. at 491.
to be discreet and added that discretion reasoning “[involves] the same submissive and compliant behavior, the same denial of a fundamental human right, which the agent of persecution seeks to achieve by persecutory conduct.”42
In 2010, it appeared that perhaps the tide had truly turned against discretion reasoning with the decision of the Supreme Court of the United Kingdom in HJ and HT. The joined cases of HJ from Iran and HT from Cameroon were a culmination of ten years of litigation by HJ and four by HT, encompassing no less than thirteen separate determinations by seventeen decision makers.43 This history renders the judg- ment by the Supreme Court all the more striking: less than two months after the oral hearing, the Court issued a unanimous five-opinion judgment. The Supreme Court largely approved the majority approach taken in S395 but condemned discre- tion reasoning in even stronger terms, and more explicitly grounded its decisions in equality rights. Lord Hope stated that “[gay people] are as much entitled to freedom of associa- tion with others of the same sexual orientation, and to free- dom of self-expression in matters that affect their sexuality, as people who are straight.”44 Lord Rodger held that
the Convention offers protection to gay and lesbian people—and, I would add, bisexuals and everyone else on a broad spectrum of sexual behaviour—be- cause they are entitled to have the same freedom from fear of persecution as their straight counter- parts. No-one would proceed on the basis that a straight man or woman could find it reasonably toler- able to conceal his or her sexual identity indefinitely to avoid suffering persecution. Nor would anyone
html; FLEEING HOMOPHOBIA REPORT, supra note 3, at 35. Note that these sources also indicate on-going difficulties putting such guidance into prac- tice. OLOV WOLF-WATZ ET AL., NORM CRITICAL STUDY OF THE SWEDISH ASYLUM
EVALUATION 4–5 (2010), available at http://www.migrationsverket.se/down load/18.1c1b3f51128bf913da580001304/normkritiskstudie_en.pdf.
proceed on the basis that a man or woman could find it reasonably tolerable to conceal his or her race in- definitely to avoid suffering persecution. Such an as- sumption about gay men and lesbian women is equally unacceptable.45
It is also noteworthy that the decision was greeted by the new conservative-led government with public statements of ap- proval and commitment to compliance.46
In the course of their article, Hathaway and Pobjoy char- acterize the judgments and their conception of sexuality vari- ously as: “far-reaching,” “too liberal,” “over-inclusive,” “ex- treme,” “extraordinarily broad,” “boundless,” “all-inclusive,” “open-ended,” “all-embracing,” “unqualified” and having “no limits.”47 Hathaway and Pobjoy contend that, by protecting trivial or marginal conduct (also termed “precipitating” activ- ity) not intrinsically connected to the protected identity, the decisions “unleash such a fundamental challenge” from a non- discrimination framework for analyzing persecution and thereby abandon the nexus requirement.48 The authors view the judgments as “jettison[ing]” principles, risking “doctrinal distortion,” causing a “legal muddle,” as well as generating a “schism” between, and creating “collateral damage” for, relig- ious and political claims.49
Hathaway and Pobjoy argue that “while risk that follows from actual or imputed sexual identity is readily encompassed by the non-discrimination norm that informs the nexus re- quirement, more nuance is required to identify the circum- stances in which protection is owed where risk follows from actions rather than from identity per se.”50 They continue:
47. Hathaway & Pobjoy, supra note 13, at 335, 335, 334, 333, 377, 374,
334, 343, 334.
48. Id. at 386.
49. Id. at 385, 338, 385, 384, 337.
50. Id. at 333.
“Where risk is the product not of identity per se but rather of having engaged in a particular activity, the nexus requirement can still be met. But this is so only when the activity engender- ing the risk is fairly deemed to be intrinsic to the protected identity.”51 In the next two sections, I address this argument as it relates to nexus and to “intrinsic” acts.
Much of Hathaway and Pobjoy’s article addresses activity (the colored cocktail) as causal of persecution. Time and again, they return to the issue of behavior in stating that there can be no nexus if conduct is marginal or “trivial” and should not therefore be protected, as opposed to acts which are inte- gral or intrinsic to the identity. This focus on “activity” is mis- leading in addressing the question of nexus and persecution. “Activity” associated with sexual orientation does not cause the persecution, nor does it form the basis of protection; it simply reveals or exposes the stigmatized identity. This can be demonstrated using a major human rights issue and a trivial stereotype, both drawn from Hathaway and Pobjoy’s own pa- per: undertaking a same-sex marriage and listening to the mu- sic of Kylie Minogue. The authors argue that both of these examples fall outside the scope of human rights protections and therefore of the Convention nexus, while I seek to demon- strate that both may, in certain circumstances, meet the Con- vention nexus irrespective of whether they could themselves be characterized as protected conduct in human rights law.
Citing European Court of Human Rights and U.N. Human Rights Committee decisions affirming that cohabiting gay couples are entitled to legal treatment equal to unmarried heterosexual couples but (as yet) denying the right to marry or adopt children, Hathaway and Pobjoy state that the right to marry is not therefore within the “scope of protected activity” for the purposes of refugee law.52 Focusing on whether an ac- tivity is protected misdirects the analysis of persecution. If a lesbian is unable to marry in her country of origin, she could not be said to be persecuted for this reason alone.53 Refugee
51. Id. at 388.
52. Id. at 381.
law provides no remedy for the lack of ability to marry. But, if a lesbian goes abroad to marry, or undergoes a ceremony of marriage in her home country which is not legally recognized, and this exposes her sexuality such that she comes to the atten- tion of persecutors, then it is clear that the risk of persecution is “for reasons of” her PSG of lesbians in her country.54 It is apparent that the nexus is satisfied by asking: do persecutors in this example attack lesbian A who underwent a ceremony of marriage with her partner, but leave lesbian B alone because she remained unmarried and cohabits with her partner in the absence of ceremony? I say it is immaterial to her claim whether her “actions” in marrying fall within the “scope of protected activity” posed in Hathaway and Pobjoy’s formula- tion because it is not her action that forms the basis of the claim. Persecutors around the world are not attacking lesbians on the basis of who got married.55
Equally clearly, there is no fundamental human right en- gaged by listening to the music of Kylie Minogue. This is the paradigm example given by Hathaway and Pobjoy of a “rela- tively trivial activity that could be avoided without significant human rights cost.”56 Yet, the trivial nature of the activity would not prevent the nexus being satisfied—unless persecu- tors were attacking all those who listen to Kylie on a non-dis-
same-sex marriage); N03/45618 [2003] RRTA 240 (Austl.) (denying the ap- plication despite applicant’s wish to marry her partner, not permitted in the Philippines).
criminatory basis (with the State also failing to protect them on such basis). That is, if persecutors hate the music of Kylie Minogue and want it eradicated (a view I could have some sym- pathy with), while simultaneously leaving openly identified gay men unharmed if only they voluntarily relinquished their CD collections, then the persecution would not involve a Conven- tion nexus. But, the trivial nature of the act itself is irrelevant to determining the question of nexus.
Both S395 and HJ and HT are significant judgments for the reason that they reject the act/identity distinction that has been so problematic for gay men and lesbians seeking equality in law,57 including refugee law.58 In the words of Lord Hope,
The group is defined by the immutable characteristic of its members’ sexual orientation or sexuality. This is a characteristic that may be revealed, to a greater or lesser degree, by the way the members of this group behave. In that sense, because it manifests it- self in behaviour, it is less immediately visible than a person’s race. But, unlike a person’s religion or po- litical opinion, it is incapable of being changed. To pretend that it does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny the members of this group their fundamental right to be what they are.59
Hathaway and Pobjoy state that “the courts were quite right to reject the rigid ‘is/does’ dichotomy.”60 Yet, their focus on ac- tivity and their concern to distinguish “trivial” from “integral” “associated activities,” as opposed to “identity per se,” main- tains and reinscribes this false dichotomy. I suggest that acts and identities in the context of sexual orientation refugee
claims cannot be separated and categorized in this way. This is evident in the example given by Hathaway and Pobjoy of per- secution on the basis of identity per se: “legislation criminaliz- ing homosexuality.”61 Such legislation almost exclusively criminalises the act of gay sex, not the identity per se.62
There are multiple and complex possibilities around the way that behavior may reflect or relate to an identity which render it impossible to categorize them as necessary/integral as opposed to chosen/peripheral. An activity may express the identity, or it may reveal the identity. The activity may be obvi- ously integral, such as gay people having sex with partners of the same sex (although the reverse proposition does not nec- essarily apply). Conversely, an action may appear peripheral, such as plucked eyebrows,63 but be integral in some contexts— for example if that is how some gay men signal to other men that they are gay, so as to be able to meet partners and friends. Arguably, gay men do not need to pluck their eyebrows to ex- press an innate sense of gayness, and thus such grooming could be characterised as “a relatively trivial activity that could be avoided without significant human rights cost”64 on an objec- tive assessment of what is “reasonably required” to express sex- ual identity. But plucked eyebrows may be an integral aspect to revealing gayness in a particular context in a way that cannot be predetermined.
The difficulty in trying to delimit the relationship be- tween act and identity in sexuality claims in the refugee con- text is compounded because expression and revelation can oc- cur in ways that are deliberate or inadvertent, and may indeed be deliberate for some purposes or audiences but inadvertent
61. Id. at 372.
for others. The plucked eyebrows, manicured carefully and in- tended only for other gay men to see might be successfully hidden under a fringe of hair or thick glasses for years, but one day a careless gesture, a nosey neighbor peering in the bathroom window, or a vengeful ex-lover call forth the wrath of persecutors. Does the characterization of eyebrow plucking by a man as trivial or stereotypical really mean that the threatened or actual persecution that follows is not—or ought not to be—protected by the Convention?
Hathaway and Pobjoy argue that nexus should only be sat- isfied when “the activity engendering the risk is fairly deemed to be intrinsic to the protected identity.”65 What is an “intrin- sic” manifestation of sexual orientation? The authors say that Lord Rodger was “surely right” in his finding that the scope of protected behavior cannot be limited to attracting and main- taining a relationship with a same-sex partner, but argue that the Convention ought not to cover “forms of behavior loosely (or stereotypically) associated with homosexuality”66 even if “innocuous and inoffensive.”67 Hathaway and Pobjoy contend that “the protected status of sexual orientation ought . . . to encompass any activity reasonably required to reveal or express an individual’s sexual identity.”68 This leaves unanswered pressing questions posed in refugee adjudications based on sexuality, many of which concern aspects of public expression, including socializing in public places, such as clubs and bars, including gay bars with gay friends. This is conduct I see as clearly integral to self and group identity, and to freedom of association, which is a core expression of the identity. Yet, ad- judicators have frequently held such conduct to be “trivial ac- tivity that can be avoided without significant human rights costs”69 and definitively not reasonably required to express one’s sexual identity.70 Similarly, transgender applicants, par-
65. Id. at 388–89.
66. Id. at 374.
67. Id. at 382.
68. Id. at 382 (emphasis added).
69. Id. at 335.
70. See, e.g., HJ (Iran) v. Sec’y of State for the Home
Dep’t (HJ Homosexu- ality), [2008] UKAIT 00044, [44], [45] (U.K.)
(“It is difficult to see on the evidence that a return to that way of
living [where appellant cannot attend
gay clubs, hold his partner’s hand
publicly or otherwise publicly express his sexuality] can properly be
characterised as likely
to result in an abandon-
ticularly those who have not undergone surgical bodily modifi- cation, have struggled with act/identity distinctions, such that public appearance in the non-birth gender has been viewed by some adjudicators as “a decision to dress as a female”71 or as a voluntary choice about trivial aspects of clothing rather than as significant expressions of identity.72
There is also an inherent contradiction in the premise that international human rights law protects the right to openly identify oneself as a sexual minority73 but not to under- take an activity which, deliberately or inadvertently, reveals that identification. To pose a principle in which all identifying speech is protected but some identifying acts are not is absurd. For these reasons of principle, I contend that there is no “line” that can be definitively drawn between integral and marginal conduct associated with sexuality. Sexual orientation is ex- pressed—and revealed—in hundreds, if not thousands, of sub- tle and obvious ways through appearance, speech, behavior, dress and mannerisms. Below, I also briefly address concerns of practical application if Hathaway and Pobjoy’s formulation were to be adopted in the future.
Hathaway and Pobjoy state that the nexus requirement should be met “only when the activity engendering the risk is fairly deemed to be intrinsic to the protected identity.”74 The use of the words “fairly” and “deemed” in this formulation of what is integral to sexual identity are very telling, and should
ment of the appellant’s sexual identity”); MK v. Sec’y of State for the Home Dep’t (MK Lesbians), [2009] UKAIT 0036, [406] (U.K.) (“Although it was the appellant’s claim that if she were to return to Albania she would have to repress her sexuality, we take the view that apart from not being able to visit gay cafe´s, since there are none, she would not have any desire to express her sexuality in any way different from the way in which she has expressed it in the United Kingdom”); T v. Special Immigration Adjudicator, [2000] EWJ 3020 (U.K.).
71. Hernandez-Monteil v. I.N.S., [2000] USCA9 421; 225 F.3d 1084, 1089 (9th Cir. 2000) (quoting and reversing the immigration judge), overruled on other grounds by Thomas v. Gonzalez, [2005] USCA9 304; 409 F.3d 1177, 1187 (9th Cir. 2005).
74. Id. at
389.
alert us to the value-laden interpolation involved in such a task. Lines between what is “integral” and what is “marginal” conduct associated with sexual minorities in another culture prospectively drawn by Western decision makers have often failed to properly encompass accepted human rights stan- dards, as the lower level decisions in HJ and HT amply demon- strate. Over a decade of my own research on sexuality-based refugee status determination has found that what is exper- ienced as a core right by gay men and lesbians is rarely re- ceived as such by adjudicators, who have grudgingly protected private sexual conduct while characterizing virtually every other manifestation of sexuality as peripheral, non-protected and dispensable.75 Even if a core and marginal distinction ap- pears meaningful in the abstract, once applied in practice it is likely to end up turning into a very different principle. Put bluntly, the more marginal a group is in social and legal terms, the more likely that what is experienced as core by them is deemed marginal by adjudicators.
Hathaway and Pobjoy themselves acknowledge that “draw- ing a line between protected and unprotected activities” is “not an easy task” and that cases on religious and political grounds have resulted in “line drawing” which has, at times, been “problematic.”76 I agree that the case examples refer- enced by them were indeed problematic, but would add that, as Justices Gummow and Hayne noted in S395, “[t]he dangers of arguing from classifications are particularly acute in matters in which the applicant’s sexuality is said to be relevant.”77 “Line drawing” around related conduct is immeasurably more difficult under the Convention ground of PSG in general, and the sub-group of sexuality in particular, because, unlike politi- cal and religious grounds, there is no party or organized hier- archy, no published doctrine, policy platform, text or founda- tional document. This means that there is even less of a framework through which one can determine what is “inte- gral” or “reasonably required” conduct related to sexuality in a given cultural context, compared to political and religious
(S395) [2003] HCA 71; (2003) 216 CLR 473, 500 (Austl.) (emphasis
added).
claims.78 Yet, in credibility determinations, absurd as it sounds, adjudicators have frequently used a Western template or “gay catechism” questioning (treating knowledge of the works of Oscar Wilde as proxy for the Bible) in trying to assess whether applicants are really gay.79 Badly drawn lines in relig- ious cases will only ever be worse drawn in sexuality claims. It is striking that the authors argue that it is not practically viable to distinguish between an applicant’s motivations for conceal- ment of sexual identity,80 which they label an “extraordinary opportunity for judicial subjectivity,”81 yet at the same time, they call for judicial determinations of what is reasonably re- quired in expression of sexual identity.
Judgments about the importance (or not) of different as- pects of sexual identity and the voluntariness of their expres- sion—about what can be “avoided without significant human rights cost,” what can be “reasonably tolerated,” and what is “reasonable” to “expect” of the behavior of lesbians and gay men—are at the very heart of discretion reasoning. Hathaway and Pobjoy are not arguing for discretion reasoning, but they are in a very real sense arguing from it. Their answer to the problem they identify as a “boundless” right to self-expression for gay people affirmed by HJ and HT is instead only to protect “activity reasonably required to reveal or express an individual’s sexual identity.”82 “Reasonable” to date has been a byword for lesser protections in sexual orientation cases. There is a very real danger that a call to circumscription, even one purport- edly based on non-discrimination principles, once interpreted and applied at lower levels of adjudication, will end up as an- other version of discretion.
This is, indeed, precisely what happened through the course of the HJ litigation. In 2003, Justices Kirby and Mc- Hugh suggested in S395 that persecution does not cease to be persecution because it can be avoided.83 Their Honors went on to note that persecution should be defined as reaching an intensity or duration such that the person persecuted “cannot be expected to tolerate it.”84 In 2006, Lord Justices Maurice Kay and Buxton in the first Court of Appeal decision concern- ing HJ applied S395 in holding that the original adjudicator had fallen into error in not asking why HJ had concealed his sexuality while living in Iran.85 Lord Justice Maurice Kay ex- plicitly considered whether what Hathaway and Pobjoy term “endogenous” harm could itself be persecutory, but he did so by conflating the High Court’s references to persecution and the expression of sexual identity86 to ask whether:
“[D]iscretion” is something that the appellant can reasonably be expected to tolerate, not only in the context of random sexual activity but in relation to “matters following from, and relevant to, sexual iden-
84. Id. at 489.
tity” in the widest sense recognised by the High Court of Australia. This requires consideration of the fact that homosexuals living in a stable relationship will wish, as this appellant says, to live openly with each other and the ‘discretion’ which they may feel con- strained to exercise as the price to pay for the avoid- ance of condign punishment will require suppression of many aspects of life that “related to, or informed by, their sexuality.”87
This passage characterizes concealment as something that may be intolerable. However, Maurice Kay’s formulation was swiftly recoined as a test of what was “reasonably tolerable,” which continued to impose positive requirements of concealment. For the next four years, U.K. adjudicators denied claims from countries such as Uganda, Sudan, Afghanistan, and Iran, in- cluding that of HJ himself, on the basis that so-called modifica- tions, adaptations, and precautions were objectively reasona- ble in the circumstances.88 The question of whether a life of secrecy in fear of risks including the death penalty was “reason- ably tolerable” for applicants who had not previously been ex- posed to harm was answered in the affirmative, as adjudicators perfunctorily held that this did not entail their sexuality being “unduly constrained.”89 So, for example:
We do not find that any limited restraint or dis- cretion exercised by the appellant so as not to give
v. Sec’y of State for the Home Dep’t (AJ Risk to Homosexuals), [2009] UKAIT 00001, and SB (Uganda) v. Sec’y of State for the Home Dep’t, [2010] EWHC (Ad- min.) 338 (U.K.), both quashed similar AIT determinations on judicial re- view because there had been past persecution such that future discretion was not possible.
rise to offence in public would in any event cause the appellant to act otherwise than his integrity or sexual- ity would allow.
We find therefore . . . that the appellant upon return will act discreetly and that it is reasonable to expect him to do so.90
In a dazzling Catch-22, a life of concealment was itself evi- dence that such a life was reasonably tolerable, because it had, after all, been lived by the applicant. As Sir John Dyson noted in HJ and HT, the tribunal held that, “for 16 years HJ had been able to conduct his homosexual activities in Iran ‘without seri- ous detriment to his private life and without that causing him to suppress many aspects of his sexual identity.’”91 Sir Dyson responded
True, HJ had endured them for 16 years, but that did not make them tolerable, let alone reasonably tolera- ble to him . . . . In short, there was no basis on which the tribunal could properly conclude that the fact that HJ had to conceal his identity as a gay man was reasonable tolerable to him.92
It is a testament to the misapplication of the “reasonably tolerating” approach that it was Lord Justice Maurice Kay him- self who granted HJ permission to appeal to the Court of Ap- peal a second time, following the negative redetermination of his matter by the tribunal.93 Hathaway and Pobjoy note that it is “technically true” that the decision maker’s job is to assess risk and not mandate conduct. Yet, it is clear on examining the history of HJ’s case that decision makers felt entitled to mandate conduct. While HJ claimed that it was “impossible”94 for him to return to “living in extreme fear and of having to
91. HJ and HT, [2010] UKSC 31, [122], [2011] 1 A.C. at 659 (Sir Dyson)
(emphasis added) (quoting HJ Homosexuality, [2008] UKAIT 00044, [44]).
92. Id. [122], [2011] 1 A.C. at 659–60.
live a lie every day of his life,”95 U.K. adjudicators applied an “objective”96 assessment of what was reasonable to expect97 by way of “adaptation”98 as well as what was reasonable to toler- ate, such that the question of how he ought reasonably to con- duct himself in Iran was central throughout.99 Expressed as factual, it was also normative—expecting is requiring.100 Hathaway and Pobjoy’s proposed test to circumscribe pro- tected behavior based on what is “reasonably required” to ex- press one’s sexuality is dangerously susceptible to similar mis- application and misunderstanding.
Moreover, any reintroduction of notions of reasonable- ness in behavior would return the onus to applicants to demonstrate that their conduct meets this “objective” stan- dard.101 How is an applicant from Iran able to demonstrate that a life they have not previously had in Iran is reasonably required? Applicants who claimed that they could not reasona- bly tolerate a life of secrecy did so by reference to their roman- tic and social lives in the United Kingdom, and to interna- tional human rights standards, only to routinely be told that refugee law does not guarantee equal freedoms in the receiv- ing and sending countries.102 This represents an impossible
95. Id. [41].
96. Id. [39].
97. Id. [44].
advocacy trap for applicants. As a practical matter, where can the objective standard of what is reasonably required be drawn from, and how can applicants hope to meet it?
A call for “circumscription” of conduct related to sexual- ity, if heeded, would once again place the burden of Conven- tion protection back on the victims, who must only express (or reveal, or expose) themselves in ways that are “reasonably re- quired.” As Justices Gummow and Hayne remind us in S395,
The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. Moreover, the use of such language will often reveal that consideration of the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity. No less importantly, if the Tribunal makes such a re- quirement, it has failed to address what we have ear- lier identified as the fundamental question for its consideration, which is to decide whether there is a well-founded fear of persecution. It has asked the wrong question.103
STRAW MAN
Having addressed the substance of Hathaway and Pobjoy’s arguments, I suggest in conclusion that this controversy could be (re)considered a storm in a teacup—or perhaps more aptly a tempest in a cocktail glass. Hathaway and Pobjoy focus a great deal of attention, and much of their ire, on a single line of Lord Rodger’s judgment, in which he references stereotypi- cal examples of gay life as “going to Kylie concerts, drinking
ically, Lord Hope makes a similar pronouncement. HJ and HT, [2010] UKSC 31, [35], [2011] 1 A.C. at 630 (Lord Hope) (“On the other hand, the fact that the applicant will not be able to do in the country of his nationality everything that he can do openly in the country whose protection he seeks is not the test.”).
(S395) [2003] HCA 71; (2003) 216 CLR 473, 501 (Gummow &
Hayne JJ) (Austl.).
exotically coloured cocktails and talking about boys.”104 The authors refer to this example no less than five times and rely upon it as the conceptual centrepiece of Part III of their arti- cle. This focus on a trivial example itself trivializes the very real harms that are experienced by sexual minority claimants and the grave disadvantages they still face in refugee law. HJ endured sixteen years of concealing his sexuality in Iran, where the death penalty by hanging or stoning for gay sex re- mains a real possibility, as is punishment such as whipping for more commonly charged offences against public morality, and violence at the hands of the police and paramilitary basij.105 HT lived a life of secrecy for ten years in Cameroon until he was seen with his partner in his garden. HT was beaten by a mob, who tried to castrate him and stabbed him in the stom- ach, and then beaten again by police officer who arrived on the scene.106 Following this incident, HT spent two months in a hospital in Cameroon recovering from his wounds. HT also served six months of a twelve-month sentence in prison in the United Kingdom for attempting to transit through to Canada on a false passport, and his application for asylum was only heard at the end of this custodial sentence. He was then sub- ject to administrative detention in the United Kingdom for a further eight months.107 Neither HJ nor HT made any claim involving a colored cocktail.
The relevant passage from Lord Rodger’s judgment reads:
At the most basic level, if a male applicant were to live discreetly, he would in practice have to avoid any open expression of affection for another man which went beyond what would be acceptable behaviour on the part of a straight man. He would have to be cau- tious about the friendships he formed, the circle of friends in which he moved, the places where he socialised. He would have constantly to restrain him- self in an area of life where powerful emotions and
104. HJ and HT, [2010] UKSC 31, [78], [2011] 1 A.C. at 646 (Lord Rod-
ger).
physical attraction are involved and a straight man could be spontaneous, impulsive even. Not only would he not be able to indulge openly in the mild flirtations which are an enjoyable part of heterosex- ual life, but he would have to think twice before re- vealing that he was attracted to another man. Simi- larly, the small tokens and gestures of affection which are taken for granted between men and women could well be dangerous. In short, his potential for finding happiness in some sexual relationship would be profoundly affected. It is objectionable to assume that any gay man can be supposed to find even these restrictions on his life and happiness reasonably tol- erable.
It would be wrong, however, to limit the areas of behaviour that must be protected to the kinds of mat- ters which I have just described—essentially, those which will enable the applicant to attract sexual part- ners and establish and maintain relationships with them in the same way as happens between persons who are straight . . . . In short, what is protected is the applicant’s right to live freely and openly as a gay man. That involves a wide spectrum of conduct, go- ing well beyond conduct designed to attract sexual partners and maintain relationships with them. To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cock- tails and talking about boys with their straight female mates. Mutatis mutandis—and in many cases the ad- aptations would obviously be great—the same must apply to other societies. In other words, gay men are to be as free as their straight equivalents in the soci- ety concerned to live their lives in the way that is nat- ural to them as gay men, without the fear of persecu- tion.108
108. HJ and HT, [2010] UKSC 31, [77]–[78], [2011] 1 A.C. at 645–46
(Lord Rodger).
Arguably Hathaway and Pobjoy are so distracted by the stere- otypical examples given in this passage that they refuse to read the judgment as it should be read. The most significant princi- ple of HJ and HT is equal access to fundamental rights and freedoms in the lived expression of sexual identity.
The stereotypical examples given by Lord Rodger do no more than preface an important statement of principle, which is one of equal treatment in the society concerned and a natural range of self-expression that encompasses both erotic and social aspects. This is neither boundless nor unprincipled. Nor should it be dismissed as a “stirring liberation manifesto.”109 Rather, it is a clear statement of law about the significance of an equality approach in assessing persecution.110 Lord Hope also directly expresses the dual aspects of both freedom of as- sociation and freedom of expression within an equality frame- work.111
HJ and HT, properly read, is a principled defense of equal access to human rights protections for lesbians and gay men. Moreover, it is entirely possible to read the case as consistent with Hathaway’s own non-discrimination framework of analysis for refugee law if one disregards his unsustainable effort in this issue to separate acts from identities (and reasonably re- quired acts from “peripheral” ones).
HJ and HT affirms that the Convention must protect from persecution lesbians, gay men, and bisexual people around the world living a normal life. It is not within the knowledge of the decision maker, nor within the responsibility or the con- trol of the applicant, to foresee and categorize everyday activi-
111.
HJ and HT, [2010] UKSC 31, [14], [2011] 1 A.C. at 622 (Lord
Hope).
ties as either intrinsic to, or marginal from, sexual orientation such that some are protected and others excluded.
It is only by starting with the expectation that gay men and lesbians are entitled to enjoy the full range of fundamen- tal human rights and freedoms that their refugee claims can be properly assessed as a failure of state protection, rather than an unreasonable or improbable violation of prevailing cultural norms. The rejection of discretion reasoning in HJ will not lead inexorably to the trivialization of international human rights through the creation of a right to drink exoti- cally colored cocktails. It is not trivial acts that are protected by the HJ and HT formulation, it is the equal treatment of gay men and lesbians with heterosexual people, rightly acknowl- edging the fact that any one of an infinitely broad range of acts, including “small tokens and gestures”112 may express or reveal the protected identity.
With HJ, the Supreme Court of the United Kingdom righted a great wrong. The premise of concealment of gay and lesbian sexuality has diverted and distorted analysis of risk of persecution, the definition of particular social group, and the availability of internal relocation in many thousands of claims worldwide. While the judgments in HJ and HT were broadly and forcefully expressed, this was a necessary step in redressing a major error of law and in shifting a discriminatory culture of adjudication. The decision signals respect and con- cern for the rights of lesbians and gay men. I hope that it will give courage to sexual minorities living under oppressive and dangerous regimes to bring about change from within, know- ing that should they be exposed to persecution and seek inter- national protection they can no longer be told to go home and hide.
In the introduction to HJ and HT, Lord Hope says, “It is crucially important that [gays and lesbians] are provided with the protection that they are entitled to under the Conven- tion—no more, if I may be permitted to coin a well known phrase, but certainly no less.”113 To date, the protection of- fered to sexual orientation has plainly been lesser than those extended to other groups and other grounds, and I cannot comprehend how HJ and HT could be seen to offer more.
112. Id. [77], [2011] 1 A.C. at 645.
113. Id. [3], [2011] 1 A.C. at 619 (Lord Hope).
The right to live freely and openly is neither boundless nor extreme; it is equality. Even were I to be proved wrong in every particular of my argument and Hathaway and Pobjoy correct in every particular of theirs, it is impossible to accept that HJ and HT could inflict a greater harm than the one it has remedied.
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