Bisexuals need not apply: A comparative appraisal of refugee law and policy in Canada, the United States, and Australia

By Sean Rehaag, Osgoode Hall Law School

This paper offers an analysis of refugee claims on grounds of bisexuality. After discussing the grounds on which sexual minorities may qualify for refugee status under international refugee law, the paper empirically assesses the success rates of bisexual refugee claimants in three major host states: Canada, the United States, and Australia. It concludes that bisexuals are significantly less successful than other sexual minority groups in obtaining refugee status in those countries.

Through an examination of selected published decisions involving bisexual refugee claimants, the author identifies two main areas for concern that may partly account for the difficulties that bisexual refugee claimants encounter: the invisibility of bisexuality as a sexual identity, and negative views held by some refugee claims adjudicators towards bisexuality as well as the reluctance of some adjudicators to grant refugee status to sexual minorities who differ from gay and lesbian identities as traditionally understood.

International refugee law and sexual minorities It is well settled in international refugee law that non-citizens facing persecution abroad on account of their sexual orientations are eligible for refugee status?4 The 1951 Convention Relating to the Status of Refugees,25 however, does not explicitly include sexual orientation.

The Convention defines a refugee as any person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country.

Some sexual minority refugees have – with varying degrees of success – attempted to argue that their fear of persecution stemmed from their ‘political opinion’. The argument has, thus far, proved to be particularly effective for human rights activists who encounter heteronormative persecution as a result of their efforts to enhance the rights of sexual minorities.

Political opinion, however, has been interpreted vel)’ broadly in international refugee law to cover ‘any opinion on any matter in which the machinel)’ of State, government, and policy may be engaged’. As a result, one could plausibly argue that ‘political opinion’ covers sexual minorities who face persecution for challenging both traditional gender norms as well as the inevitability of heterosexuality. With respect to the former (i.e. traditional gender norms), the United Nations High Commission for Refugees (UNHCR) Guidelines on Gender-Related Persecution state that political opinion ‘may include an opinion as to gender roles. It would also include non-conformist behaviour which leads the persecutor to impute a political opinion. , This is significant because persecution targeting sexual minorities often aims to ‘foster and maintain “appropriate” gender role behaviour’ .

Meanwhile,with regard to the latter (i.e. challenging the inevitability of heterosexuality), the argument would find some support in the commonly made claim that the heterosexually structured family is the fundamental socio-economic unit, one that is supported through a variety of state policies?2 Sexual minorities, by their vel)’ existence, may be understood as challenging both the heterosexual family and the state policies that support it. In other words, sexual minorities may have political opinions regarding gender roles and the heterosexual family imputed to them, and may be persecuted on that basis?

One might also plausibly contend that hetero-normative persecution sometimes involves not only persecution on grounds of ‘political opinion’ but also persecution on grounds of ‘religion,. The UNHCR Guidelines on Gender-Related Persecution, for example, state that………..




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