08
Mar
Connie Oxford Responds to James Hathaway & Jason Pobjoy
Panel 1 of the NYU JILP Vol. 44:2 Online Symposium
Connie Oxford is Assistant Professor of Gender and Women's Studies at the State University of New York, Plattsburgh. Her publications include Queer Asylum: U.S. Policies and Responses to Sexual Orientation and Transgendered Persecution in Shifting Control: Gender and Migration Policy, 1917-2010. Marlou Schrover and Deidre Moloney (eds.) Amsterdam, Netherlands: Amsterdam University Press. In Queer Cases Make Bad Law, James C. Hathaway and Jason Pobjoy criticize decisions of the High Court of Australia and the Supreme Court of the United Kingdom regarding two queer asylum cases, respectively, S395[1] and HJ and HT.[2] They argue that while in each case, the applicants were rightfully granted asylum, each Court erred in its legal logic, and therefore, strayed from “accepted refugee doctrine." Their critique rests on a model of persecution that differentiates the physical realm of harm (exogenous) from psychological harm (endogenous). They conclude that the two gay Bangladeshi men granted asylum in Australia and the gay Iranian and Cameroonian men granted asylum in the UK had “no well-founded fear of exogenous harms” even though this was the basis of the Courts’ favorable judgments. Conversely, the Courts were silent on the claimants’ experiences of “severe psychological harm” that instead, according to Hathaway and Pobjoy, should have formed the logic of these decisions. In this brief response, I address the idea that gay men who “opt for seclusion” face only a well-founded fear of endogenous harm and not one of exogenous harm. The lynchpin of Hathaway and Pobjoy’s argument is a dichotomous classification of persecution for gay men.[3] They designate outward bodily harm, such as “prosecution or beatings” as exogenous and inward psychological harm that “follow[s] from self-repression (anxiety, paranoia, disassociation, or worse)” as endogenous. Although they do not state explicitly that all forms of persecution are necessarily one or the other, the examples offered imply that the harm itself is mutually exclusive to the body or mind in their taxonomy of persecution. Nor do they suggest whether the exogenous/endogenous binary is specific to queer cases or applicable to claims of persecution based on other grounds such as religion or political opinion that they compare to social group. I take issue with two implications of the exogenous/endogenous model. First, I find problematic the binary logic embedded in the exogenous/endogenous framework for ascertaining harm. This is not to say that persecution cannot be solely physical or psychological at times, but rather it is not always exogenous or endogenous. Whether Hathaway and Pobjoy are advancing the notion that harm must always be one or the other is not clear, and if this is their argument, then it certainly does not stand in the face of empirical examples of torture. For example, studies of torture survivors show that psychological trauma, such as Post Traumatic Stress Disorder (PTSD), is routinely constitutive of (rather than merely a result of) physical harm.[4] The second implication of their argument that I want to address is the ways in which the exogenous/endogenous binary is applied to queer cases.