'Bisexuals Need Not Apply: A Comparative Appraisal of Refugee Law and Policy in Canada, the United States, and Australia' by Sean Rehaag in 13(2) International Journal of Human Rights (2009) -
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.Rehaag comments that -
Before turning to my main argument, it is pertinent to first address the terminology used in this paper. Debates regarding appropriate labels for sexual behaviours, sexual identities, and sexual orientations are one of the mainstays of discussions about what human rights have to say about sexual minorities. One source of these debates is that, regardless of which terminology one chooses to embrace, it will inevitably fail to accord with the self-understanding of many of those who are supposed to be covered by the terminology. There have, for example, been sharp disagreements over terms such as MSM (men who have sex with men), WSW (women who have sex with women), ‘homosexual’, ‘gay’, LGBT (lesbian, gay, bisexual, and transgender), and ‘queer’. Some of the concerns expressed over such terms include whether a term occludes distinct sexual identities and complex intersectional considerations related to gender, class, race, language, religion, physical ability, HIV status, and so on; whether one inappropriately conflates (or bifurcates) sexual behaviours and sexual identities; and whether one excludes particular groups that ought to be included. Moreover, cross-cultural dimensions add a further level of complexity to these debates, because even if one’s chosen terminology is accepted within one community, it may be inappropriate in communities located in other regions of the world. In this paper, I adopt the general term ‘sexual minorities’. I choose the term because it has relatively unsettled and imprecise boundaries. This imprecision is helpful, as it allows the term to include all persons seeking protection from persecution on account of hetero-normativity, irrespective of their precise sexual identities or sexual behaviours.
One further terminological matter remains: my use of the term ‘bisexuality’. Debates about appropriate labels are, if anything, even more pronounced with respect to bisexuality than to other sexual minority identities. Once again, cross-cultural considerations muddy the waters. Some of those characterised in one locale as ‘bisexual’ may be viewed in others as ‘homosexual’ or ‘heterosexual’. In the context of this paper, it is necessary to note in particular that a person who would otherwise identify as exclusively homosexual may be coerced into different-sex sexual relations or into adopting bisexual identities through hetero-normative persecution.
This paper attempts to sidestep some of these debates over the definition of ‘bisexuality’ because my interest is not to set out a particular definition and advocate its use by refugee claims adjudicators. Rather, my interest is to explore how sexual minority refugee claimants whose cases involve allegations of non-gender-exclusive sexuality are treated in the refugee determination systems in several major host states. In this paper, therefore, I use the term ‘bisexual’ loosely to mean a person whose sexual orientation, sexual identity, or sexual behaviour is not directed exclusively towards persons of one particular sex or gender.
