'Queer cases make bad law' by James C. Hathaway and Jason Pobjoy in (2012) 44(2)
New York University Journal of International Law and Politics 315
asks
Do “queer cases” - like proverbial “hard cases” - make bad law?
In this article, we take a careful look at how common law courts have addressed the asylum claims of homosexuals fleeing anti-gay prosecutions and violence in their home countries. Two top courts - the High Court of Australia, and the Supreme Court of the United Kingdom - have now tackled the question in decisions hailed as major victories for both gay rights, and for the continuing vitality of the Refugee Convention itself.
In these recent decisions, both courts struck down a doctrine under which gay claims to asylum had been rejected on the grounds that the applicants could - and should - “be discreet” about their sexuality, and thereby avoid the risk of being persecuted at home. In an extraordinary passage that has attracted significant public attention, Lord Rodger of the new UK Supreme Court asserted that “just as male heterosexuals are to be free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically colored cocktails and talking about boys with their straight female mates”.
While these decisions are clearly liberating (indeed, exciting), this article provides the first critical assessment of their impact on international refugee law as a whole. We suggest that to reach their preferred result, the Australian and UK courts ran roughshod over the duty to find a “well-founded fear” of future persecution; that they failed clearly to understand the real human rights costs of the enforced concealment that so-called “discreet” homosexuals face; and that by finding that the Convention’s requirement to show that risk “for reasons of” a form of protected status was met when risk follows only from going to concerts, drinking cocktails, or engaging in “boy talk” the courts severed the established - and critically important - link between refugee law and non-discrimination norms.
We offer an alternative theory of how international refugee law can and should embrace the claims of sexual minorities who can avoid serious harm only by accepting self-repression. We believe that such claims should be assessed on the basis of the real, forward-looking risk of serious psychological harm that ensues in such circumstances. We also seek to open a discussion about just when risks that follow not from sexual orientation as such, but rather from actions vaguely (perhaps even stereotypically) associated with homosexuality can honestly be said to be threats “for reasons of” one’s sexuality.
The authors conclude
“Hard cases, it has frequently been observed, are apt to introduce bad law.” In formulating what has become a legal adage, Judge Rolfe expressed his concern that the faithful application of legal rules — in that case, rules on privity of contract — would require him to deny relief to a deserving litigant, an injured coachman who had no direct contractual relationship with the negligent repair firm.
The circumstances of S395 and HJ and HT are, of course, quite different. Despite what we view as the courts’ misapplication of the “well-founded fear” test, failure accurately to identify the relevant risk of being persecuted, and disregard of the principled limits set by the refugee definition’s nexus requirement, the courts ultimately ruled in favor of granting asylum to the applicants. As such—and in stark contrast to the disabled coachman of concern to Judge Rolfe who would receive no relief—the misapplication of legal rules in S395 and HJ and HT meant that gay men seeking relief from the misery of a life of perpetual enforced concealment in Bangladesh, Cameroon, and Iran would be able “to live freely and openly . . . to be as free as their straight equivalents . . . to live their lives in the way that is natural to them as gay men, without fear of persecution.”
In the face of such a clearly correct result, we may appear churlish to insist that the basis for recognition of refugee status in such cases be revisited. We wish to be absolutely clear that, like nearly everyone else in the human rights community, we deeply admire both the Australian and British courts’ rejection of a “duty of discretion” to avert persecution, and more generally their commitment to the context-sensitive application of refugee law to gay applicants.
But it would in our view be a serious error to allow our instincts simply to celebrate the cases to override our intellectual responsibility to ensure that refugee law evolves in a way that is both principled and sustainable. While there is no question that S395 and HJ and HT are watershed decisions, Oliver Wendell Holmes famously cautioned that “[g]reat cases like hard cases make bad law. For great cases are called great, not by reason of their importance . . . but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”
As we have been at pains to show, the courts’ errors are not without real and detrimental consequences, both for gay claimants (at least in the medium term) and for persons seeking refugee status on the basis of other Convention grounds (as decisions have already shown). Most important, the correction of these errors in line with the framework advocated here will in no sense compromise the ability of gay applicants and others to access asylum when faced with the prospect of indefinite self-repression to avert clear threats to their safety.
No, there is no well-founded fear of exogenous harms, such as prosecution or beatings, where a gay man would in fact opt for seclusion to escape such threats. But, given the traumatic effects that normally follow from self-repression (anxiety, paranoia, disassociation, or worse) there is an alternative and solid basis, grounded in the traditional link between persecution and risk to core norms of human rights law, to affirm refugee status. Because the risk of severe psychological harm has been authoritatively interpreted to contravene the right to protection against cruel, inhuman or degrading treatment, this is the persecutory risk that is most likely to be well-founded in such cases.
And no, it is not the case that refugee status is owed whenever serious harm is threatened by reason only of an applicant having engaged in some activity that is vaguely or stereotypically associated with homosexuality (or any other protected ground). Drawing on norms of non-discrimination law, the “for reasons of” criterion in the Convention definition was conceived as a principled delimitation of the beneficiary class. This means that it is ordinarily a form of immutable identity — whether actual or imputed — that is the lynchpin to refugee status. In general terms, refugee status is owed only where risk ensues because of who the applicant is or what he believes. Where risk is the product not of identity per se but rather of having engaged in a particular activity, the nexus requirement can still be met. But this is so only when the activity engendering the risk is fairly deemed to be intrinsic to the protected identity.
Refugee law is not an all-embracing remedy for every circumstance in which full freedom is not made available. This realization should not, however, blind us to the dominant reality: refugee law fairly interpreted may be imperfect, but is nonetheless a powerful means by which human rights commitments can be made real in the lives of those fundamentally disfranchised in their home states. It is a sign of strength that refugee law encompasses not just gay applicants facing the clear risk of prosecution under anti-gay laws or rabid vigilante violence, but also persons who would opt for the prisoner’s dilemma of sacrificing their own psychological well-being to avert such harms. Similarly, the commitment of refugee law to deny states the right to circumscribe the beneficiary class on any basis other than by reference to principles of non-discrimination law, including both forms of fundamental identity and engagement in activities at the core of such protected identities, is a critical bulwark against self-interested retrogression.
We will, however, occasionally have to acknowledge that some persons whose aspirations for freedom pull at our heart-strings may not be able to meet even these progressively interpreted tests. Law is imperfect, and international law — subject to the need to secure the consent of an extraordinarily diverse community of states — is perhaps more imperfect than most law. It is nonetheless clear that the context-sensitive application of norms already agreed by states can yield powerful results, including the liberation of sexual minorities from ongoing self-repression.
