Database

Lesbian, gay, bisexual, and transgender individuals (LGBTs) face persecution and violence around the globe. Many are forced to escape this persecution in their countries of origin and make claims for refugee status on the basis of their sexual orientation or gender identity. Turkey is increasingly a crossroads for mixed migration flows from Asia and Africa to Europe, and has seen a rise in the numbers of LGBT asylum seekers in recent years. Many arrive in Turkey to confront new violence and harassment by local communities and other refugees. While awaiting the determination of their refugee status, they avoid the police, are afraid to leave their homes, and have very limited access to social support, employment, and medical care. Expedited resettlement is one short-term solution to the security concerns facing this group. Longer-term solutions include training government agencies and social service providers on basic concepts regarding LGBT status and the rights of LGBT asylum seekers and refugees.

In Appellants S395/2002 and S396/2002 v. Minister for Immigration and Multicultural Affairs, the High Court of Australia was the first ultimate appellate court to consider a claim for refugee status based upon sexual orientation. By majority the court rejected the notion prevalent in earlier cases that decision-makers could ‘expect’ refugee applicants to ‘co-operate in their own protection’ by concealing their sexuality. This paper explores the impact of S395 and S396 on the refugee jurisprudence of Australia and the United Kingdom five years on. Refugee decision-makers in both countries have been slow to fully appreciate the fact that sexual minorities are secretive about their sexuality and relationships as a result of oppressive social forces rather than by ‘choice’. In addition, in Australia there has been a clear shift away from discretion towards disbelief as the major area of contest, with a significant increase in decisions where the applicant’s claim to actually being gay, lesbian or bisexual is outright rejected. In an alarming number of cases tribunal members used highly stereotyped and Westernised notions of ‘gayness’ as a template against which the applicants were judged.

More than 80 countries around the world still criminalize consensual homosexual conduct between adult men, and often between adult women. These laws invade privacy and create inequality. They relegate people to inferior status because of how they look or who they love. They degrade people’s dignity by declaring their most intimate feelings “unnatural” or illegal. They can be used to discredit enemies and destroy careers and lives. They promote violence and give it impunity. They hand police and others the power to arrest, blackmail, and abuse. They drive people underground to live in invisibility and fear.15More than half those countries have these laws because they once were British colonies. This report describes the strange afterlife of a colonial legacy. It will tell how one British law—the version of Section 377 the colonizers introduced into the Indian Penal Code in 1860—spread across immense tracts of the British Empire.

Most scholarship, policymaking, service provision, activism, and cultural work remain organized around the premise that migrants are heterosexuals (or on their way to becoming so) and queers are citizens (even though second-class ones). Where do queer migrants figure in these frameworks and activities? How do we conceptualize queer migration—which is at once a set of grounded processes involving heterogeneous social groups and a series of theoretical and social justice questions that implicate but extend beyond migration and sexuality strictly defined, and that refuse to attach to bodies in any strictly identitarian manner—in order to challenge and reconfigure the dominant frameworks? Queer migration scholarship, which has flourished since the 1990s, takes on these and other ambitious questions.

Focusing on the U.S. campaign to secure recognition of same-sex couple relationships within immigration law, this article brings the scholarship about the social construction of undocumented immigration into critical conversation with queer studies. Challenging neoliberal representations of legal or illegal immigrant status as a sign of individual character, rather than as an outcome of multiple relations of power, the article highlights the central role of sexual regimes in constructing the distinction between legal and illegal. The article further explores, however, how sexual regimes always function in relation to crosscutting hierarchies of race, gender, class, and geopolitics. This suggests that the campaign for recognition of same-sex couples must address the multiple underpinnings of the il/legal distinction or else risk benefiting only the most privileged. The article then examines how recognized couple relationships provide the technology through which the state and its assemblages attempt to manage the risks associated with immigration and, over time, to transform legally admitted immigrants into “good” neoliberal citizens—while threatening those who do not measure up with potential illegalization. These dynamics raise important questions about citizenship, surveillance, discipline, and normalization that merit consideration by those struggling for recognition of same-sex couples within immigration law. They also enable us to further reconceptualize the legal/illegal distinction as an ongoing (rather than one-time) production, anchored in multiple relations of power that include, but are not limited to, sexuality. I conclude by questioning whether and to what extent sexuality may provide a locus for renegotiating the distinction between legal and illegal immigrants and its associated logics of violence.

An emerging issue in U.S. asylum claims based on “membership in a particular social group” is the relevance of social visibility in determining whether such a group exists. Of the five protected grounds for asylum, “membership in a particular social group” has always generated the most debate. Until recently, however, neither the Board of Immigration Appeals (BIA) nor the federal courts focused on “social visibility” in defining this term. The dominant view of the international community, rooted in the BIA’s seminal decision in Acosta, defines a “particular social group” based solely on the existence of an “immutable” characteristic,” one that an individual either cannot change or should not be required to change because it is fundamental to identity of conscience. External perceptions are irrelevant to the Acosta standard. Among the major common law countries, the United States, Canada, New Zealand, and the United Kingdom follow the principled “protected characteristic” approach. Australia, on the other hand, has emphaszied social perceptions, while also taking immutable characteristics into account.

This article considers several questions surrounding sexual migration, binational same-sex couples, legal precedent, and the role of religious communities in lesbian and gay migration to the United States. With theoretical aspects of human rights serving as a starting point, the article then moves to a consideration of the legal dynamics of migration, the history of U.S. (im)migration law in relation to lesbian and gay asylum claims, and the Uniting American Families Act (2005). Drawing from the concept of sexual migration, the article proposes that religious or spiritual communities may provide important networks and ideological resources for lesbian and gay migrants who subscribe to religious values, particularly in a context of politically incendiary claims surrounding homosexuality and immigration. The analysis centers on the Metropolitan Community Church (MCC), suggesting that with its socially legitimatized status, MCC may provide philosophical foundations necessary for effectively addressing human rights for lesbian and gay migrants.

This essay examines the historical and theoretical development of sexuality in migration research. Noting gaps and omissions in the literature, the essay proposes a dual notion of sexuality including one that is produced by the intersection of other social identities such as class and race, and a queer studies-derived idea of the sexual that goes against the normalizing of heterosexual institutions and practices. Utilizing a case study of Filipina migrant workers, the essay demonstrates the pivotal role of sexuality in the future of gender and migration research through a critique of the implicit normative assumptions around family, heterosexual reproduction, and marriage that abound in this body of literature, and how a critical notion of sexuality enables a more inclusive and accurate portrait of global gendered migration.

Since the early 1990s, we have witnessed how the system of asylum law reacts the relativization of the nation-state in the global domain. The growing emphasis on cultural aspects in the conceptualization of “being persecuted” has stressed the dimension of positive obligations. This emphasis has widened the discretionary margin of decision makers. The substantive vacuum at the “human rights core” of the concept of “being persecuted” is a precondition for processes of acculturation through the asylum procedure. In asylum decisions, constructions of a particular cultural identity are cloaked in the universal language of human rights. A central role is played by the assessment of credibility of the applicant, which is modelled on the Christian practice of auricular confession. An applicant is credible where her “true identity” and that of the state of asylum correspond. Credibility assessments are but a reconfirmation of the identity of the asylum state and its protagonists.