Sarah Hinger is a Marvin M. Karpatkin Fellow at the ACLU Racial Justice Program and previously worked at the New Jersey Institute for Social Justice. Ms. Hinger is a 2009 graduate of Columbia Law School, where her note, Finding the Fundamental: Shaping Identity in Gender and Sexual Orientation Based Asylum Claims, was awarded the Myra Bradwell Prize by the Columbia Journal of Gender and Law.
Focusing on the risk of psychological harm in determining whether a gay man or woman who would opt for seclusion has the requisite well-founded fear of persecution, as Hathaway and Pobjoy do, unnecessarily requires the applicant to demonstrate the fundamental nature of his or her identity. Rather, courts correctly find that persecution occurs whenever a regime forces “discretion.” In seeking asylum, the applicant asserts a wish to live openly in a way that would subject him or her to persecution in the country of origin. Assuming the applicant is deemed credible on this count, it should make no difference that the applicant may have in the past chosen to conceal aspects of his or her identity.
My broader point is that asylum law should rightly focus on incursions on choice in a fundamental aspect of human identity rather than scrutinizing particular individual choices. Just as a state commits persecution when it requires discretion of an individual who has chosen to live—or cannot avoid living—in ways that openly incur violence, persecution occurs when the individual could and would, but does not want to, cover. How a person copes with the threat of persecution need not, and should not, enter the asylum inquiry. Whatever the choice, and whatever the ensuing psychological effects, asylum law protects against coerced choice in fundamental spheres of human identity.
As the authors indicate, sexual orientation is a well-recognized basis for receiving asylum protection. In holding that sexual orientation can form the basis of an asylum claim, courts adopt a presumption of the universal importance of this characteristic to human identity. Thus, it is unnecessary to probe an individual’s psychological state to understand the harm to his or her fundamental identity. Focusing on the individual psychological impact requires the portrayal of fragile victims without the capacity to maintain an identity that is not wholly bound up with persecution. The requirement to show severe psychological damage is merely another way to test whether the identity is truly “fundamental.”
This requirement creates problematic results. Take, for example, the bisexual asylum applicant. Would same-sex sexual desires be considered less “fundamental” to her identity, and thus, concealment less psychologically damaging? For a lesbian mother, if she has previously chosen to stay in her country of origin, prioritizing remaining with her children, does this counteract any mental distress caused by concealing her identity and choosing not to seek out same-sex relationships? Perhaps these individuals do suffer less psychological harm than some others, perhaps not. The very inquiry, however, is inappropriate. The point of asylum law’s protection is that no one should be forced to make such choices under penalty of violence. When a court recognizes that an applicants’ preferred choice would be met with persecution, the asylum inquiry is rightly satisfied.