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NYU JILP Vol. 44 No. 2

Sarah Hinger Responds to James Hathaway & Jason Pobjoy

by NYU Journal of International Law and Politics

Panel 1 of the NYU JILP Vol. 44:2 Online Symposium

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.

David John Frank Responds to James Hathaway & Jason Pobjoy

by NYU Journal of International Law and Politics

Panel 1 of the NYU JILP Vol. 44:2 Online Symposium

David John Frank is Professor of Sociology and, by courtesy, Education at the University of California, Irvine. He is interested in the cultural infrastructure of world society, especially as it changes over time and varies across national contexts.

It makes some sense to justify LGBT asylum claims in terms of the traumatic consequences of self-repression.  A surfeit of evidence demonstrates the extent to which such consequences exist.  They may culminate in suicide.

Still, it is important to recognize that LGBT asylum claims and self-repression are different phases of a joint system.  The system designates individuals as the base units of reality.  And it renders particular forms of desire as lasting sexual identities.

Notice the peculiarity of both system features.  In comparative and historical perspective, it is unusual to carve persons out from their natural and social embeddings and to prop them up as stand-alone entities.  More typical are systems arranged around corporate entities, such as families and races.  The legal apparatus of asylum claims and the psychological apparatus of self-repression both assume the natural reality and social priority of individuated persons.

Likewise in comparative and historical perspective, it is unusual to treat sexual desires as sexual identities – enduring and defining feature of individuals.  More typical are systems that regard sexual desires as evanescent tastes (something one likes in a particular moment), or as situational role performance (something one does in a particular context).  Asylum claims and self-repression both assume a permanent and essential stamp of LGBT identity.

Of course, to say they are two phases of a joint system is not to disregard the obvious differences between LGBT asylum claims and self-repression.  Asylum rights are enabling.  Self-repression is disabling.  Asylum rights are public matters.  Self-repression is a private matter.  And so on.

All of this is important to spell out because it describes the world as we know it and the world as we believe it should be.  In articulating the assumptions that allow us to justify LGBT asylum claims in terms of the traumatic consequences of self-repression, we specify the conditions under which such a justification makes sense and thereby strengthens its persuasive punch.

New York University Journal of International Law and Politics, Vol. 44:2 Online Symposium

by NYU Journal of International Law and Politics

The NYU Journal of International Law and Politics is partnering once again with Opinio Juris for an online symposium.  The symposium will correspond with the simultaneous release this week of our Vol. 44, No. 2 issue, featuring a ground-breaking piece by Professor James Hathaway, a world-renowned leader in refugee studies and director of Michigan’s refugee law program, and Jason Pobjoy, a Ph.D. candidate in Law at Gonville and Caius College, University of Cambridge and a visiting doctoral researcher at NYU.  The article, Queer Cases Make Bad Law, serves as a point of departure for contributions by other leading scholars, who examine and expand on issues raised by the piece.  Here is a short summary of the article and an introduction by Editor-in-Chief Jeff Stein.

On Thursday and Friday, several of the print contributors as well as other international experts will engage on various topics intersecting with LGBT asylum and refugee law raised by Professor Hathaway’s article here at Opinio Juris.  Rather than taking a traditional Q&A approach, we felt that it would be more productive to actually use direct quotes from the Hathaway/Pobjoy article and responses to ignite conversation. The first two panels focus on the definition of “being persecuted”, while the second panel focuses on the issue of “nexus”.  The following is the schedule and roster of participants:


Panel 1: Thursday, March 8th, 8am – 12pm

James C. Hathaway and Jason Pobjoy, Queer Cases Make Bad Law, 44 N.Y.U. J. Int’l L. & Pol. 315, 388 (2012):

“No, there is no well-founded fear of exogenous harms, such as prosecution or beatings, where a gay man would in fact opt for seclusion to escape such threats. But, given the traumatic effects that normally follow from self-repression (anxiety, paranoia, disassociation, or worse) there is an alternative and solid basis, grounded in the traditional link between persecution and risk to core norms of human rights law, to affirm refugee status. Because the risk of severe psychological harm has been authoritatively interpreted to contravene the right to protection against cruel, inhuman or degrading treatment, this is the persecutory risk that is most likely to be well-founded in such cases.”