Budd, ‘Mistakes in Identity’ 2009

Michael Carl Budd, ‘Mistakes in Identity: Sexual Orientation and the Asylum Process’, The American University in Cairo, 2009

Abstract

This thesis examines the prejudice that exists on the part of decision‐makers responsible for determining refugee status and adjudicating asylum claims in jurisdictions that accept claims based on sexual orientation. An analysis of case law from both common law and civil law jurisdictions uncovers the negative impact of judicial stereotypes about sexuality on refugees and asylum‐seekers. It follows the increasing importance placed on proving the genuineness of the claimants’ professed sexual identity that has coincided with an increased emphasis on credibility, a trend that has heightened the impact of decision‐makers’ biases regarding sexuality.

In addition to analyzing case law, the opinions of lawyers and other experts are included to add nuance and further illuminate decisions. The unique challenges that distinguish lesbian, gay, bisexual and transgender (LGBT) claimants from other refugees as well as the behavior of decision‐makers are subsequently interpreted through the lens of sociologist Erving Goffman’s theories on stigma and self‐presentation.

The thesis then suggests that Western stereotypes about sexuality (and non‐normative sexuality in particular) that revolve around appearance, demeanor, past relationships, sexual activity, cultural values, and other experiences and elements of identity are particularly problematic for LGBT refugees, most of whom come from a non‐Western context. The thesis further asserts that to be understood properly, the refugee narrative must be examined with regards to the intersection of multiple identities—gender, ethnic, religious, and others. The conclusion ultimately drawn is that LGBT refugees who are multiply marginalized as a result of these identities must be seen as having been excluded from participation in the political and religious discourses that regulate and restrict their lives who attempt to rectify this injustice through their transgressions of social norms. In light of this, recommendations are made to consider LGBT claims based on political opinion and religious grounds rather than relying on membership in a particular social group which does not recognize the political and religious dimensions of sexual identity. Recognizing the considerable difficulty of such a shift, further suggestions are made with regard to combating stereotypes within the current particular social group approach.