Jenni Millbank Reflects on Panel 3 and Responds to Guglielmo Verdirame

In Part III of their article in this special issue, Hathaway and Pobjoy claim that S395 and HJ and HT, in articulating a right to live freely and openly, have taken an “all-embracing formulation” to “action-based risks” associated with sexual orientation.  The judgments, they say, “seem to assume that risk following from any ‘gay’ form of behavior gives rise to refugee status.”  The authors argue to the contrary that refugee law should “draw a line” so as to only protect actions deemed integral to sexual orientation and not those that are deemed peripheral, trivial or stereotypical.  I contend that Hathaway and Pobjoy’s argument is both wrong in principle and dangerous in practice.

Reasoning premised on assumptions about the ease, naturalness, and legal correctness of concealing lesbian, gay, and bisexual identity, is one of, if not the, most significant and resilient barrier to the fair adjudication of sexual orientation based refugee claims worldwide to date.  In 2010, it appeared that perhaps the tide had truly turned against discretion reasoning with the decision of the Supreme Court of the United Kingdom in HJ and HT.  The joined cases of HJ from Iran and HT from Cameroon were a culmination of ten years of litigation by HJ and four by HT, encompassing no less than thirteen separate determinations by seventeen decision makers.  The Supreme Court largely approved the majority approach taken in the High Court of Australia decision in S395 (2003) but condemned discretion reasoning in even stronger terms, and more explicitly grounded its decisions in equality rights.  Lord Hope stated that “[gay people] are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self-expression in matters that affect their sexuality, as people who are straight.”  While Lord Rodger held that

“[T]he Convention offers protection to gay and lesbian people—and, I would add, bisexuals and everyone else on a broad spectrum of sexual behaviour—because they are entitled to have the same freedom from fear of persecution as their straight counterparts.  No-one would proceed on the basis that a straight man or woman could find it reasonably tolerable to conceal his or her sexual identity indefinitely to avoid suffering persecution.  Nor would anyone proceed on the basis that a man or woman could find it reasonably tolerable to conceal his or her race indefinitely to avoid suffering persecution.  Such an assumption about gay men and lesbian women is equally unacceptable.”

In the course of their article, Hathaway and Pobjoy characterize the judgments and their conception of sexuality variously as: “far-reaching,” “too liberal,” “over-inclusive,” “extreme,” “extraordinarily broad,” “boundless,” “all-inclusive,” “open-ended,” “all-embracing,” “unqualified” and having “no limits.”  Hathaway and Pobjoy contend that, by protecting trivial or marginal conduct (also termed “precipitating”  activity) not intrinsically connected to the protected identity, the decisions “unleash a fundamental distancing” from a non-discrimination framework for analyzing persecution and thereby abandon the nexus requirement.  Hathaway and Pobjoy argue that, “Where risk is the product not of identity per se but rather of having engaged in a particular activity, the nexus requirement can still be met.  But this is so only when the activity engendering the risk is fairly deemed to be intrinsic to the protected identity.”

Hathaway and Pobjoy’s focus on activity and their concern to distinguish “trivial” from “integral” “associated activities,” as opposed to “identity per se,” maintains and reinscribes a false dichotomy of status and conduct.  There are multiple and complex possibilities around the way that behavior may reflect or relate to an identity which render it impossible to categorize them as necessary/integral as opposed to chosen/peripheral.  An activity may express the identity, or it may reveal the identity.   The activity may be obviously integral, such as gay people having sex with partners of the same sex (although the reverse proposition does not necessarily apply).  Conversely, an action may appear peripheral, such as plucked eyebrows, but be integral in some contexts—for example if that is how some gay men signal to other men that they are gay, so as to be able to meet partners and friends.  Arguably, gay men do not need to pluck their eyebrows to express an innate sense of gayness, and thus such grooming could be characterised as “a relatively trivial activity that could be avoided without significant human rights cost” on an objective assessment of what is “reasonably required” to express sexual identity.  But plucked eyebrows may be an integral aspect to revealing gayness in a particular context in a way that cannot be predetermined.

The difficulty in trying to delimit the relationship between act and identity in sexuality claims in the refugee context is compounded because expression and revelation can occur in ways that are deliberate or inadvertent, and may indeed be deliberate for some purposes or audiences but inadvertent for others.  The plucked eyebrows, manicured carefully and intended only for other gay men to see might be successfully hidden under a fringe of hair or thick glasses for years, but one day a careless gesture, a nosey neighbor peering in the bathroom window, or a vengeful ex-lover, call forth the wrath of persecutors.  Does the characterization of eyebrow plucking by a man as trivial or stereotypical really mean that the threatened or actual persecution that follows is not—or ought not to be—protected by the Convention?

Hathaway and Pobjoy argue that nexus should only be satisfied when “the activity engendering the risk is fairly deemed to be intrinsic to the protected identity.”   What is an “intrinsic” manifestation of sexual orientation?  The authors say that Lord Rodger was “surely right” in his finding that the scope of protected behavior cannot be limited to attracting and maintaining a relationship with a same-sex partner, but argue that the Convention ought not to cover “forms of behavior loosely (or stereotypically) associated with homosexuality” even if “innocuous and inoffensive.”  Hathaway and Pobjoy contend that “the protected status of sexual orientation ought…to encompass any activity reasonably required to reveal or express an individual’s sexual identity.”  Does this include socializing in public places, such as clubs and bars, including gay bars with gay friends?  This is conduct I see as clearly integral to self and group identity, and to freedom of association, which is a core expression of the identity.  Yet, adjudicators have frequently held such conduct to be “trivial activity that can be avoided without significant human rights costs” and definitively not reasonably required to express one’s sexual identity.

I contend that there is no “line” that can be definitively drawn between integral and marginal conduct associated with sexuality.  Sexual orientation is expressed—and revealed—in hundreds, if not thousands, of subtle and obvious ways through appearance, speech, behavior, dress and mannerisms.  Moreover, lines between what is “integral” and what is “marginal” conduct associated with sexual minorities in another culture prospectively drawn by Western decision makers have often failed to properly encompass accepted human rights standards, as the lower level decisions in HJ and HT amply demonstrate.  Over a decade of my own research on sexuality-based refugee status determination has found that what is experienced as a core right by gay men and lesbians is rarely received as such by adjudicators, who have grudgingly protected private sexual conduct while characterizing virtually every other manifestation of sexuality as peripheral, non-protected and dispensable.  Even if a core and marginal distinction appears meaningful in the abstract, once applied in practice it is likely to end up turning into a very different principle.  Put bluntly, the more marginal a group is in social and legal terms, the more likely that what is experienced as core by them is deemed marginal by adjudicators.

Hathaway and Pobjoy themselves acknowledge that “drawing a line between protected and unprotected activities” is “not an easy task”. “Line drawing” around related conduct is immeasurably more difficult under the Convention ground of PSG in general, and the sub-group of sexuality in particular, because, unlike political and religious grounds, there is no party or organized hierarchy, no published doctrine, policy platform, text or foundational document.  This means that there is even less of a framework through which one can determine what is “integral” or “reasonably required” conduct related to sexuality in a given cultural context, compared to political and religious claims.  Yet, in credibility determinations, absurd as it sounds, adjudicators have frequently used a Western template or “gay catechism” questioning (treating knowledge of the works of Oscar Wilde as proxy for the Bible) in trying to assess whether applicants are really gay.

Judgments about the importance (or not) of different aspects of sexual identity and the voluntariness of their expression—about what can be “avoided without significant human rights cost,” what can be “reasonably tolerated,” and what is “reasonable” to “expect” of the behavior of lesbians and gay men—are at the very heart of discretion reasoning.  Hathaway and Pobjoy are not arguing for discretion reasoning, but they are in a very real sense arguing from it.  Their answer to the problem they identify as a “boundless” right to self-expression for gay people affirmed by HJ and HT is instead only to protect “activity reasonably required to reveal or express an individual’s sexual identity.”  “Reasonable” to date has been a byword for lesser protections in sexual orientation cases.  There is a very real danger that their call to circumscription, even one purportedly based on non-discrimination principles, once interpreted and applied at lower levels of adjudication, would end up as yet another version of discretion.

In the context of sexual orientation refugee claims the expression of sexual identity cannot be separated and categorized as integral or marginal, reasonably required or avoided without significant cost.  Refugee adjudicators, no less than Hathaway and Pobjoy, or myself, or you, are fundamentally incapable of defining which acts are integral and which are marginal, to a woman living in rural Uganda when it comes to expressing her sexuality. Nor should we imagine that is the role of refugee law to scrutinise such expression in order to decide whether it is reasonable.