Queer Cases, Great Law: S. Chelvan Responds to Jenni Millbank & Guglielmo Verdirame
S. Chelvan is a Barrister at No5 Chambers, London; a PhD candidate in law at King’s College London; and a UK Country Expert and External Expert to the Advisory Board for the Fleeing Homophobia project. He is known as “a doyen of immigration cases involving issues of sexual identity.” (Chambers UK 2012).
“An Englishman, Irishman and a Scotsman walk into a bar. The barman asks the Scotsman . . . .”
“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.”
What is the similarity, and then the difference, between the two passages above? The similarity is that most readers would accept that they each illustrate an example of British humour. The difference? Some observers read the second reference, taken from § 78 of Lord Rodger’s reasoning in the U.K. Supreme Court case of HJ, not to be illustrative of anything linked to humour, but rather a blatant attack on fundamental principles underlying refugee law. I align myself to the first scenario and aim in this short note to analyse why concentrating on excluding certain categories of conduct from protection misses the point.
Kendall (2003 citing Mahoney J.A. in Thavakaran), rejects an approach where the “onus for removing the fear of persecution [is] on the victim, rather than the perpetrator” (see also Johnson, 2007: 107 fn. 30). What is at the core of the reasoning of the U.K. Supreme Court is not a right to what some observers may describe as “peripheral conduct”, but a right not to be persecuted, for reasons of sexual identity. Verdirame’s limitation on the conduct of a gay man, which went “beyond” what a straight man can exercise in the public sphere, is echoed in an earlier 2005 UK Asylum and Immigration Tribunal decision of AT (Homosexuals: need for discretion?) Iran  UKAIT 00119. The AIT held, at § 28, in one of its most controversial determinations that resulted in complaints from the U.K. NGO’s UKLGIG and Stonewall, that:
“Whether there is or is not a ‘core right’ for persons of any sexual orientation to conduct themselves with discretion in their public sexual practices is not something we need in our view decide, though we should have thought that such discretion was part of the ordinary consensus of civilized mankind (and still more so of a number of races considered ‘uncivilized,’ so far as they still exist). The reason is that this appellant on our findings of fact, and his own expressed intentions for the future, has never shown the slightest wish to engage in homosexual conduct in any way in the face of the public or the authorities, such as might expose him to any real risk, on the background evidence, on return to Iran. Whether he has or does not have a ‘core right’ to go in for that sort of thing, his return will not expose him either to Convention persecution or ill-treatment.”
There are only three examples I can call upon to illustrate a rare and clearly ignorant approach to the exercise of public sex, being centrally connected with a refugee claim in the U.K. In XY (Iran) (2008), counsel for the appellant argued to the England and Wales Court of Appeal not to remove his gay client because he would be returned to a life of sex in the public bath houses and he would not be able to have sex in the family home [§ 14]. Secondly, the stance of the U.K. Home Office for many years with respect to the alleged existence of cruising in a Tehran park, where men were able to pick up other men for sex, was that this indicated an ability to be gay in Iran, and therefore gay men were not refugees. The third, and final example, is in the case of Hylton  EWHC 1992 (Admin), where Counsel for the U.K. Home Office submitted that the risk group in Jamaica was limited to “a homosexual prostitute or homosexuals who cruise in particular areas” [§ 11] (position reversed in DW (2005) (AIT)).
But sexual identity, is more than just conduct (see MN (Kenya) (2005) [§ 15] AIT, DW (Jamaica) (2005) [§ 27] AIT and R (SB (Uganda) (2010) Admin Court [§ 2]). It is expressed in a variety of different ways.
Millbank quite correctly identifies the existence of a blur between integral, and marginal conduct. I will use a hypothetical surrounding the politics of the water-cooler to illustrate how “protected conduct” can be identified. Mary, a self-identified lesbian, meets her recently appointed fellow co-worker Brian, on a Monday morning by the water-cooler. After gossiping about their new boss, Brian asks Mary what she did over the weekend. Mary spent the weekend with her girlfriend Linda, enjoying a picnic in Central Park on Sunday. Brian replies that he too was in the park on Sunday, also having a picnic, but with his wife Alison. In this banal scenario, by disclosing this information to Brian, Mary is not informing him of any sexual conduct that Mary may, or may not, be currently engaging in with Linda. But in that one single sentence: “spent the weekend with my girlfriend Linda, enjoying a picnic in Central Park,” she is declaring her sexual identity as a lesbian to Brian. Having a picnic, is not the conduct which could be termed “peripheral conduct” (Buxton), for the purposes of a refugee claim. The conduct is speech, through the truth, enabling Mary to express her sexual identity, without identifying any “public sex act.”
Mary is in one sentence not marking herself as a human rights activist, and Brian sees no difference in her disclosure, which mirrors a leisure activity in which he has also engaged. Additionally, she is not fixating on extreme stereotypical references in order to flaunt her sexual identity (Johnson, 2007). The difference is that Mary has identified Linda as her “girlfriend,” which in turn possibly identifies her as a lesbian, or more accurately as “non-straight” because she could be bisexual. There would clearly exist equivalent examples in the Global South, but with the real risk that unlike in New York, such self-identification has a real risk of leading to persecution if conveyed to, or overhead by, a potential persecutor. Nevertheless, the U.K.’s AIT rejected this Counsel’s differing analogy in JM (Uganda) (2008) at §§ 148, 149:
“We find that the appellant was able to conduct his life style in Uganda for many years exhibiting such characteristics without harm or harassment and we can find little reason to find that he cannot continue to do so. However, we do not find that the appellant is somebody who is reasonably likely to proclaim his homosexuality to all and sundry whom he meets or to taxi drivers in the course of a journey.
We observe the appellant to be a sensitive and attentive person who would be discreet in his public behaviour, being mindful of his society’s concepts of good manners and the general social mores. We find as a matter of fact that he will on return act in the same relatively discreet way he did before. We recognise that such discretion in his case may extend to avoiding kissing in public or of a public act or remark which might provoke comment or outrage.”
Straight Ugandans are able to kiss in public, and readily engage in “truth-telling” with an inquisitive taxi driver (a global phenomenon not restricted to Uganda). JM was found not to have engaged in what would reasonably be assumed to be acts that are exercised by straight Ugandans. What is not being advanced above, is what Millbank (at 117) refers to as “integral to self and group identity” in the manifestations of socialising in public places such as gay bars with gay friends, especially where the AIT held that such gay bars existed in Kampala. The examples above are far less connected with group-differentiated identity than with group sameness. Talking to the taxi driver, gossiping with a work colleague, or in effect “any activity reasonably required to reveal or express an individual’s sexual identity” falls within what Hathaway and Pobjoy accept as within the “protected status of sexual orientation.” Nevertheless, Hathaway and Pobjoy reject protection of peripheral activity, including going to Kylie concerts, drinking exotically coloured cocktails, engaging with “boy talk,” or imputation of sexual identity arising from such conduct. They conclude that such risk “cannot reasonably be said to be a risk that arises “for reasons of sexual orientation.”” They find that the Australian and U.K. Courts have established an unprincipled departure from the Refugee Convention’s nexus with non-discrimination principles, by providing that a “boundless range of activities is protected under the rubric of sexual orientation.”
Over concentration on the list of activities contained in the “infamous” § 78, and less-infamous § 77, are not “protected activities” ring-fenced by the U.K. Supreme Court. In applying the Refugee Convention nexus ground of non-discrimination, the U.K. Supreme Court is expressly, in these two paragraphs, examining scenarios (in § 78 solely in the U.K.) and examples of what could not occur with the threat of harm. However, Lord Rodger in HJ was not espousing conduct that went beyond what a straight man would be limited to, but rather an equivalence, and important difference: heteronormative and homonormative, as well as conduct which is not aligned to such stereotypes. He relates this to an expression of gay identity that will involve a wide spectrum of different and sometimes similar ways, to straight identity, connected to the protected status that comprises sexual identity.
The Court is not indicating that an inability to engage in only such activities leads to a successful refugee claim. In highlighting mutatis mutandis (changing those things which need to be changed), Lord Rodger was specifically drawing from the nexus of non-discrimination, but additionally recognizing the differences between gay men and straight men in the U.K.. Gay gossip at the time in London, inferred that the original reference in § 78 was going to be to Barbara Streisand, then this was replaced to Kylie Minogue, and then just ‘Kylie’. In refusing to accept protection of such conduct, due to imputation of sexual identity, Hathaway and Pobjoy do not address the survival mechanisms required to be adopted by LGB individuals, where persecution exists. This requires aggressive engagement in heteronormative conduct, to the point that to evade persecution they must have an opposite-sex partner, or be receptive to offers of sexual conduct from potential opposite-sex partners, and/or have children. Without such engagement, even straight women can be at real risk of curative rape, and even murder, due to their identification by their persecutors as “sodomites.” (see SW (Jamaica) (2011)).
Verdirame directly opposes Lord Rodger’s formulation in § 77 of HJ, where Lord Rodger discusses the inability “to indulge openly in the mild flirtations which are an enjoyable part of heterosexual life, but he would have to think twice before revealing that he was attracted to another man.” According to Verdirame, such a limitation on conduct does not preclude self-fulfilment in a dignified manner. He indicates that such restraint is within the range of “reasonably tolerable inconveniences.” This conclusion ignores Lord Rodger’s use of such examples to illustrate precluded conduct when discretion/concealment is employed. But this list does not hold itself out to be exhaustive, or determined by merely one of the examples. The examples only exist to show that if such conduct occurs, and harm follows, then such harm is for ‘reasons of’ the protected Convention reason, i.e. sexual identity.
As is illustrated by Gummow and Haynes JJ in Appellant S395, sexual identity has numerous manifestations. What is protected is the sexual identity, not the manifestation of the expression of that identity. Otherwise, “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” [§ 82 of S395]. If a gay man, hypothetically speaking, is in a bar in Uganda, listening to Kylie, drinking a cosmopolitan, and engaging in boy talk, and the mob attacks him, then the attack is not due to the mob hating Kylie’s music, or finding the cosmopolitan too bitter, but is due to the gay man’s gender (UNHCR 2002 [§ 16]) or ‘gender-sex role’, non-conformity (Chelvan, 2010 and 2011: 60 fn. 35). It is the identification of difference, with the consequent attachment of requisite stigma based on social/religious/cultural norms that results in the harm. This leads to a correct focus not on “protected and unprotected activities,” but on “protected status.” This is what the Supreme Court protects in HJ.