Homosexuality is illegal in at least 69 countries and discrimination against LGBTI persons is globally rampant. When this discrimination leads to individuals being persecuted because of their sexuality or gender identity, the victims are entitled to asylum under EU law. However, as this blog has previously discussed, ‘proving’ whether a person is LGBTI, and therefore if their asylum claim is credible, is an almost impossible task. While the situation today is far from perfect, two cases of the Court of Justice of the European Union (CJEU) Der Schwulentest show how in the past unscientific, and human rights infringing medicalised tests have been used when assessing the sexuality of gay asylum seekers.
The 2014 case of A, B and C v Straatssectaris van Veilgheid en Justitie was referred to the CJEU by the Netherlands after each of the three applicants’ claim for asylum had been rejected for not being credible. As part of the assessment, in an attempt to demonstrate that their asylum claim was true, two of the three applicants submitted pornographic video evidence of same-sex sexual acts that they had participated in. The Dutch authorities rejected to allow this as evidence. When this was appealed, the Dutch Council of State referred the case to the CJEU, asking what was the limit of what can be used as evidence of a credible claim by a gay asylum seeker.
The CJEU firstly confirmed that there can be an assessment as to whether an asylum seeker is gay or not – an asylum seeker simply claiming that they are gay is not always sufficient evidence to qualify for asylum. The CJEU went on to limit what cannot be used to assess credibility. Thankfully the Court was quick to state that ‘medical tests’ to prove a person’s sexuality such as phallometry or vaginal photoplethysmography are contrary to human rights practices and cannot be used (however, in the Czech Republic, such practices have been reported in the courts as late as 2016). Pornographic video or photographic evidence, even if produced by the applicant themselves, were also considered to be outside the limit of acceptable evidence. The court went, rightly, as far as to ban sexually explicit questions from asylum interviews, recognising that a person’s sexuality is more than just sexual behaviour.
“The Court was quick to state that ‘medical tests’ to prove a person’s sexuality are contrary to human rights.”
One thing that the CJEU failed to do in this case, however, is to completely eliminate the possibility of the use of, and reliance on, stereotypes within credibility assessment. While stereotypes alone cannot be used to say that an asylum seeker is not gay, they are not completely banned – meaning that adjudicators’ Western, clichéd and even offensive thoughts on what a gay person is can enter an official asylum process. As a quick example of how stereotypes can be manifested and used against applicants is that of a Ugandan lesbian claiming asylum in the UK who was asked if she had ‘read Oscar Wilde’. While the ABC case was a positive step forward in terms of disallowing medical tests, it did not define what exactly constituted a medical test. The problem with this was made clear in 2018 with the case of F v Bevándorlási és Állampolgársági Hivatal. This time the case was referred to the CJEU by Hungary on the basis as to whether psychological or psychiatric tests could be used to determine whether an asylum seeker’s self-identified sexuality was credible. The applicant was made to complete multiple psychological reports which incredibly featured: ‘an exploratory examination, an examination of personality and several personality tests, namely the ‘Draw-A-Person-In-The-Rain’ test and the Rorschach and Szondi tests’. To make that perfectly clear, yes, asylum adjudicators in Hungary truly tried to use an ink blot test to prove if someone was gay.
As if this case could get potentially more offensive, the psychologists report after the tests stated not that the applicant’s self-determined sexuality was false, but that the tests could not confirm that he was gay. Maybe it was not possible to determine he was gay from these tests as for many years the scientific community has rejected them, and lots of countries have banned their use. In a somewhat passive aggressive move Hungary asked the CJEU not only if psychological or psychiatric tests could be used to determine sexuality for the purposes of asylum, but if they could not use psychological tests, did that mean that they could not use any expert report?
The Court firmly answered that yes, expert reports can be used – citing examples such as expert reports on countries where LGBTI persons face repression. However, the Court made clear that an individual’s personal circumstances need to be taken into account, and a person cannot be denied asylum based just on one expert report.
“A psychological or psychiatric test in order to ‘prove’ one’s sexuality is an infringement on a person’s right to private life.”
As to whether psychological or psychiatric tests can be used, the Court found that having a psychological or psychiatric test in order to ‘prove’ one’s sexuality was an infringement on a person’s right to private life. This, combined with an overwhelming consensus that such tests were ineffective, meant that the interference with private life was not proportionate to the accuracy or benefits of using the test and were to be discontinued. The Court also referred to the fact that even if the applicant were to ‘consent’ to the test, it is doubtful to what extent this could truly be considered consent, within the high pressure field of an asylum process.
The medicalisation and testability of sexuality is a highly contentious subject, and the developments made by the CJEU in this area are welcome when it comes to the difficulties of credibly assessing asylum claims that are based on sexuality. However, while both these cases gave advice on what cannot be done in interviews, neither gave positive guidance on how credibility should be assessed. As mentioned in the prior blog on this subject, credibility assessments are still wracked by stereotypes, damaging and demeaning content and ethnocentric and gendered concepts of sexuality that is clearly a tool of the established power. The CJEU has ended the use of medical, Der Schwulentest psychological and psychiatric tests but the EU needs to do a lot more to make sure LGBTI persons rights are protected during asylum assessment.