Hazeldean, ‘Confounding Identities: The Paradox of LGBT Children Under Asylum Law’, 2011

Susan Hazeldean, ‘Confounding Identities: The Paradox of LGBT Children Under Asylum Law’, UC Davis Law Review, vol. 45, no. 2 (Dec. 2011)

The U.S. government has unfairly refused to grant asylum to lesbian, gay, bisexual, and transgender (L GBT) children and young adults who fled their countries to escape persecution based on their sexual identities These asylum denials are a conundrum: young people ought to be particularly sympathetic claimants, and those seeking asylum based on their sexual orientation have a twenty-year-old precedent for such claims. This Article offers a novel theory to explain why this seemingly sympathetic subset of individuals eligible for legal relief has been refused it. Specifically, it contends that asylum adjudicators are in the grip of “Popular Freudianism,” whereby a person who is LGBT cannot be a child, and a child cannot be LGBT. As such, the idea of an “LGBT child” is treated as a paradox. This confounding nature of LGBT identity and childhood leads immigration judges to unfairly deny LGBT children asylum relief. Asylum law was initially ahead of constitutional jurisprudence in recognizing gay men as a persecuted minority in need of protection, but it has since fallen behind evolving constitutional norms on the rights of LGBT young people. After exploring the gulf between contemporary constitutional jurisprudence and asylum law, the Article elucidates the barriers confronting young LGBT asylum-seekers and makes recommendations to improve the asylum adjudication system on their behalf.