"When Refugees are Queer:
Adjudicating the Asylum Claims of Sexual Minorities"
Nicole LaViolette
Assistant professor
Common Law Section, Faculty of Law
University of Ottawa
The successes of lesbian and gay political movements in the industrialized nations of Western Europe, North America and Australia and New Zealand, have ostensibly created safe havens for sexual minorities fleeing persecution elsewhere. Indeed, in increasing numbers, gay men, lesbians, bisexuals and transgendered people are seeking political asylum in several refugee-receiving countries like the United States, Canada, Australia and The Netherlands.
In Canada, since the early 1990s, men and women have claimed refugee status in Canada based on the persecution they face as sexual minorities in their country of nationality. The Canadian response to these developments has been a widening of the basis upon which individuals may claim to be persecuted. In fact, a 1993 Supreme Court decision¹ confirmed that gender and sexual orientation are grounds upon which an individual may claim refugee status in Canada. These developments have resulted in more than one hundred queer asylum claims having been adjudicated by the Canadian Immigration and Refugee Board. The large number of sexual minorities that have claimed refugee status in Canada, and the specific steps the Canadian Immigration and Refugee Board has taken in the area of specialized training on sexual identity issues, provides researchers with a rich and varied source of information about the situation of sexual minorities around the world.
Using the Canadian experience, the conference paper and presentation will examine how sexual orientation moulds the experiences of those seeking asylum and the impact it has on the reception given to queer refugees. More specifically, the issue of interest is the extent to which sexual minorities can voice true accounts of their experiences, and the ability of decision-makers to grapple with issues of cultural, sexual and gender diversity.
The challenges' sexual minorities face in stating their claim for asylum may indeed be compounded by the inevitable intersection, in the refugee determination process, of actors from refugee-producing states and refugee-receiving countries. Indeed, many queer refugees come from countries that share "a colonial past and an economically dependent present²," while refugee-receiving countries consist mainly of industrialized Western nations. The refugee system requires claimants to convince decision makers that they have a reasonable fear of persecution in their country of nationality, and that the state is unwilling or unable to offer them protection. Queer refugees from developing and transitional countries must therefore relate their stories of persecution to adjudicators from developed nations in order to convince them that the acts of violence and harassment they fear do indeed meet the legal definition of persecution.
The paper proposes to examen this unique intersection of developing, transitional and developed nations in relation to issues of sexual orientation and identity. The main objective of the paper is to examine how refugees, who often arrive with moving stories of resistance to homophobia and heterosexism, are then required to assimilate and mould their narratives in ways which make their stories ring true to refugee adjudicators.
Some of the questions that will be addressed are:
- What do the narratives of queer refugees tell us about the experiences of sexual minorities around the world?
- What do their stories of queer refugees tell us about the universality of the queer experience?
- In what ways must queer refugees mould their experiences into narratives palatable to adjudicators in refugee-receiving countries?
¹ Canada (A.G.) V. Ward [1993] 2 S.C.R. 689.
² Peter Drucker, Different Rainbows (London, Gay Men's Press, 2000) at p. 9.