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.