The 'Discreet Homosexual'

Many states offer asylum to people who claim that they are likely, if returned to their home country, to suffer persecution on the grounds of their sexual orientation. As exhibited by recent events in Malawi and Uganda, many countries still view homosexual identity as anathema, and seek to criminalise even private, consensual adult expressions of affection between persons of the same sex. (Before rushing to condemn such states, it is worth recalling that it is less than 20 years since Ireland removed similar laws from its statute books.)

Happily, the Refugee Act 1996 expressly mentions 'sexual orientation' as one of the grounds on which a person may plead that they will be persecuted if returned to their country of origin. The Irish Act expressly defines "membership of a particular social group" as including membership of a trade union as well as "membership of a group of persons whose defining characteristic is their belonging to the female or the male sex or having a particular sexual orientation;"

In more recent years, however, some states have sought to argue that a person should not be granted asylum if they would be able to avoid persecution by remaining discreet about their sexuality in their home country. The 'live discreetly back home' approach suggests that a person should not be granted asylum on this basis if it is open to them to escape persecution by concealing their sexuality in their home country.

Most recently, a Nigerian man has challenged a decision to decline refugee status on this basis, the State arguing that he should not experience any difficulty in his home country provided that he keeps his sexuality private. The applicant was denied asylum on the basis that it was open to him to avoid persecution by remaining discreet and relocating within Nigeria. He was also refused subsidiary protection on similar grounds. A judicial review of the decision to deport this man is currently before the Irish courts:

Here is a report from the Evening Herald:
http://www.herald.ie/national-news/dont-deport-me-back-to-nigeria-because-im-gay-2259673.html

and in the Irish Times:
http://www.irishtimes.com/newspaper/ireland/2010/0715/1224274739229.html

I do not wish to comment on this specific case while it is before the courts.

Nonetheless, the broader issue has been considered in a recent UK Supreme Court decision in H.J. (Iran) & H.T. (Cameroon) (UK Supreme Court, 7 July 2010). (I am grateful to Professor Robert Wintemute and to Cathal Kelly for bringing this case to my attention).

http://www.unhcr.org/refworld/docid/4c3456752.html

There the Supreme Court (formerly 'the House of Lords') ruled that the state was not permitted to require a person to live discreetly back home when they otherwise wished to live an open life as a gay man or lesbian. While the situation would be different in the case of a person who in fact wished to keep their sexuality a secret for reasons other than the avoidance of persecution, a person could not be forced to avoid persecution by being manhandled back into the closet. If a person wished to do so, he or she was entitled to live openly as a gay man or lesbian. If the person would be persecuted for so doing in their home country, asylum should issue.

The carefully-framed decision does not establish, however, that no gay person should ever be returned to a country which persecutes gays and lesbians. The Court noted, for instance, that a person who chooses, in their home country, to remain discreet for social and cultural reasons, and who would remain 'in the closet' for reasons other than to avoid state persecution, would not be able to claim asylum. For instance, a person who would choose to remain discreet in order not to upset their family, or face social ostracisation would not be granted asylum. The Convention, in other words, does not offer protection from social and cultural disapproval of homosexuality. The aim is to offer protection from persecution, usually at the hands of the state.

Notably, in the Netherlands, the Aliens Circular also precludes the operation of a 'live discreetly back home' criterion in asylum cases concerning gay men and lesbians. (I am grateful to Professor Kees Waaldijk for this information).

The decision of the UK Supreme Court is to be welcomed. The suggestion that a gay person should be returned to a hostile country of origin on the basis of his ability to survive in secret is clearly contrary to the right to live openly in society, if one chooses to do so.

The 'live discreetly back home' line enforces a 'code of silence', endorsing a rather old-fashioned view that gays and lesbians should be tolerated provided that one doesn't make an issue of one's sexuality in public.

The 'live discreetly' perspective also appears to sanction a culturally relativist approach to human rights - that what may be demanded by the human rights standards of western countries, may not be appropriate in other countries, given the different cultural and social norms that prevail in those states. This approach serves to sanction normative approaches that are in conflict with those considered to be integral to human rights in European states on the basis that the latter should not be allowed to impose their values on other, less liberal jurisdictions. This cultural sensitivity, while possibly laudable in certain respects, serves effectively to condone the oppression, in particular, of women and gays and lesbians in those countries.

The words of Lord Rodger are instructive in this regard, if conveying a somewhat stereotyped perception of straight and gay men respectively:

"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, going 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 cocktails and talking about boys with their straight female mates. Mutatis mutandis – and in many cases the adaptations 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 society concerned to live their lives in the way that is natural to them as gay men, without the fear of persecution."

Leaving aside the point that gay men also drink beer, and occasionally even play rugby, the point is a valid one. One would hardly return a devout Christian to North Korea on the grounds that she will survive if she keeps her religious practices secret. Nor would it be acceptable to suggest that a political activist can avoid persecution on grounds of his political opinion simply by keeping schtum about his political views.

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