How Do You Know If Someone is Gay?

by Erik Voeten on March 20, 2013 · 3 comments

in Comparative Politics,Law

As the U.S. Supreme Court is getting ready to consider gay marriage, the European Court of Justice (ECJ, the European Union’s highest court) is asked a very different question pertaining to gay rights: how do you determine whether someone is homosexual? The case is referred to the ECJ (in Dutch) by the Dutch highest court. The issue concerns asylum seekers. The Netherlands and many European countries will not send homosexual asylum seekers back to countries where their sexual orientation can endanger them. With good reason: there are several countries that have severe penalties for homosexuality, including the death penalty. See here for an interesting working paper by Enze Han and Joseph Mahoney (both former students) who try to explain variation in punitive and protective policies for LGBT individuals.

Now the legal issue: immigration authorities sometimes suspect that asylum seekers opportunistically claim to be homosexual when they are not. Researchers from the Free University in Amsterdam have documented how 25 European countries test whether someone is telling the truth. This goes as far as a “penistest,” administered in Slovakia and the Czech Republic to measure arousal when an applicant watches pornographic material. Bulgaria, Poland, and Romania admit homosexual asylum seekers to a psychiatric institution for observation. The researchers find that where the tests are least intrusive, distrust among immigration authorities is higher. Applicants have gone as far as to film themselves performing sexual acts and use the video as evidence.

The main question (in Dutch) before the court will be what tests are so intrusive as to constitute fundamental human rights violations. I know enough about European human rights law to assert with some confidence that the “penistest” would quite clearly violate the European Convention on Human Rights. I suspect institutionalization would befall a similar fate. It is not surprising that the countries with the most severe policies are those where acceptance of homosexuality is lowest (see also here). Perhaps a useful reminder for Americans that not all Europeans are so liberal on this issue.

{ 3 comments }

Mika March 20, 2013 at 5:48 pm

As a liberal Finn I must say that when it comes to Finland the numbers that you find in those Monkey Cage articles you link are outdated. Two recent polls suggest that nowadays majority of Finns are for gay marriage, numbers were for 57% / 58% and against 32% / 47%.

Also, nowadays we have this thing called citizen’s initiative or something(“kansalaisaloite” in finnish (like that helps anyone understand what I’m talking about)) where people collect names for their initiative and when they reach 50.000 our parliament must take that initiative into consideration in some way or another which they really don’t know how to do yet, they (parliament) are discussing it right now.

Some people decided to start such initiative for the legalization of gay marriage, equal marriage law (tasa-arvoinen avioliittolaki) they call it. People could sign their name electronically via internet beginning midnight 19.3. By noon 19.3. over 50.000 people had signed the initiative and in 24 hours over 100.000 people had signed it. Compared to other initiatives… well, you really can’t do that. The success of this initiative is sooo in the league of it’s own. That’s pretty cool, I’d say.

Ilya Lozovsky March 20, 2013 at 10:31 pm

Would Ukrainian or Russian “homosexual propaganda” legislation be sufficient grounds for a gay asylum seeker from one of those countries to be able to claim asylum status based on persecution based on sexual orientation? What about threats from non-state actors, such as right-wing or religious activists?

Scott Lawrence March 22, 2013 at 1:18 pm

Just give all claimants asylum, they will be in risk of persecution from their home states for claiming to be gay in order to get asylum. Just having said it once means the risk is there.

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