An Advocate General of the European Court of Justice on Thursday issued an opinion stating people have the right to define their own sexual orientation during asylum claims, potentially ending some member-state’s long-term practice of forcing lesbian, gay and bisexual asylum seekers to prove their sexuality.
The opinion came in response to the Netherlands’ decision to deny three gay men asylum for an array of perplexing reasons including not providing a “film depicting himself performing sexual acts with another male” to a “lack of knowledge of homosexual rights organisations in the Netherlands” to an apparent vague reaction to “the realisation of his own sexual orientation in a Muslim country.” In her opinion, Advocate General Eleanor Sharpton said the practice of proving one’s sexuality through such invasive measure violates the European Charter of Fundamental Rights, and nothing should be required of applicants “that would undermine their human dignity or personal integrity.”
Under Europe’s system of law, the Court of Justice of the European Union is benched with a judge from each of the European Union’s 28 member-states. These judges in turn are aided in making and interpreting decisions by a team of nine Advocates General. While the opinions from Advocates General are non-binding, the judges of the Court frequently come to similar conclusions in their final rulings.
The Netherlands’ treatment of its LGB asylum seekers is not a fringe response from the European Union. Just last year, the European Court of Justice declared that ‘voluntary discretion’ was not justifiable in denying someone asylum stating “a person’s sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it.”
In the Czech Republic, some gay men seeking asylum have had to go to extremes to prove their sexuality including enduring a ‘phallometric test’ which hooks them up to machines that monitor blood-flow to the penis while being forced to watch straight porn. They pass the test if they don’t become aroused, but if they do, they are denied their request for asylum. It wasn’t until after an Iranian man seeking asylum in Germany appealed his transfer to the Czech Republic to escape undergoing this treatment that the EU Commission ruled the practice illegal.
Just last month, the United Kingdom denied a bisexual Jamaican man asylum for the second time after a judge agreed with a previous decision that the man did not adequately prove his sexuality. The U.K.’s Home Office, which processes asylum claims, has a history of invasive questioning during its asylum procedures including interrogating applicants with questions such as “When x was penetrating you, did you have an erection?”, “What is it about men’s backsides that attracts you?” and “So you had intercourse with him not just blow jobs?”
Last week’s ruling deems these forms of interrogation an overstep of privacy, and notes that “an asylum seeker’s averred sexual orientation should always form the starting point of any assessment.” But to protect the “integrity of the asylum system and identify bogus claims,” Sharpton says sexual orientation should still be proven in order to granted asylum.
Shannon Greenwood is an intern at ThinkProgress.