Yesterday the UK Supreme Court issued a ruling in an asylum deportation case. The court decided that asking people to hide their sexuality (as the Home Office had been suggesting) was not appropriate. A Win! That was about all I knew.
And then I saw a photo of the Express front page. Yes, it really does say "Now Asylum If You'reGay - They must be free to go to Kylie concerts and drink multi-coloured cocktails, says judge". Yearghhhhhhh Rage at the express for the headline. Read the article... a judge said that??? Yearghhhhhhh Rage at the judge. Stop. Think. Go find the source of the quote.
The source of the Kylie and Cocktails quote is the judgement itself. I'm going to quote the whole lot and just highlight the bit that everyone is focusing on. I feel this is important because the context changes things quite a bit:
78. ...
In short, what is protected is the applicant’s right to live freely and openly as a gay man. That involves a wide spectrum of conduct, going well beyond conduct designed to attract sexual partners and maintain relationships with them. To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are 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 coloured cocktails and talking about boys with their straight female mates. Mutatis mutandis – and in many cases the adaptations would obviously be great – the same must apply to other societies. In other words, gay men are to be as free as their straight equivalents in the society concerned to live their lives in the way that is natural to them as gay men, without the fear of persecution.
See that bit about "trivial stereotypical examples"? He is calling these out as stereotypes. He is calling these out as a load of rubbish. And more than that, he is saying that there is more to being gay than gay sex or fitting a gay stereotype.
In fact, I highly recommend reading the whole of this thread of Lord Rodger's argument. It starts in paragraph 75 where he stops talking about which test and talks instead about the outcome of the test:
75. ... In my view the core objection to the Court of Appeal’s approach is that its starting point is unacceptable: it supposes that at least some applications for asylum can be rejected on the basis that the particular applicant could find it reasonably tolerable to act discreetly and conceal his sexual identity indefinitely to avoid suffering severe harm.
76. ... So, starting from that position, the Convention offers protection to gay and lesbian people – and, I would add, bisexuals and everyone else on a broad spectrum of sexual behaviour - because they are entitled to have the same freedom from fear of persecution as their straight counterparts. No-one would proceed on the basis that a straight man or woman could find it reasonably tolerable to conceal his or her sexual identity indefinitely to avoid suffering persecution. Nor would anyone proceed on the basis that a man or woman could find it reasonably tolerable to conceal his or her race indefinitely to avoid suffering persecution. Such an assumption about gay men and lesbian women is equally unacceptable. Most significantly, it is unacceptable as being inconsistent with the underlying purpose of the Convention since it involves the applicant denying or hiding precisely the innate characteristic which forms the basis of his claim of persecution
...
80. Another way of pointing to essentially the same basic defect in the approach of the Court of Appeal is to say that a tribunal has no legitimate way of deciding whether an applicant could reasonably be expected to tolerate living discreetly and concealing his homosexuality indefinitely for fear of persecution. Where would the tribunal find the yardstick to measure the level of suffering which a gay man – far less, the particular applicant – would find reasonably tolerable? How would the tribunal measure the equivalent level for a straight man asked to suppress his sexual identity indefinitely? The answer surely is that there is no relevant standard since it is something which no one should have to endure. In practice, of course, where the evidence showed that an applicant had avoided persecutory harm by living discreetly for a number of years before leaving his home country, the tribunal would be tempted to fall into error. The tribunal would be liable to hold that the evidence showed that this applicant, at least, must have found his predicament reasonably tolerable in the past – and so would find it reasonably tolerable if he were returned to his country of nationality. But, in truth, that evidence would merely show that the applicant had put up with living discreetly for fear of the potentially dire consequences of living openly.
He is saying that hiding sexuality is not a matter of 'discretion' - it's so far out the realm of reasonableness that there is no appropriate test that can be given. Something which so many of us have to go through (within a 'lesser' social context rather than persecution) is not reasonable.
There is also a problem with the word 'discretion'. As Lord Collins puts it, "In the context of cases such as this, the use of the words “discretion” and “discreetly” tends to obscure the point that what is really involved is concealment of sexual orientation" (P101). Paragraph 77 also talks a little about what would actually be required by living 'discreetly':
77. At the most basic level, if a male applicant were to live discreetly, he would in practice have to avoid any open expression of affection for another man which went beyond what would be acceptable behaviour on the part of a straight man. He would have to be cautious about the friendships he formed, the circle of friends in which he moved, the places where he socialised. He would have constantly to restrain himself in an area of life where powerful emotions and physical attraction are involved and a straight man could be spontaneous, impulsive even. Not only would he not be able to indulge openly in the mild flirtations which are an enjoyable part of heterosexual life, but he would have to think twice before revealing that he was attracted to another man. Similarly, the small tokens and gestures of affection which are taken for granted between men and women could well be dangerous. In short, his potential for finding happiness in some sexual relationship would be profoundly affected. It is objectionable to assume that any gay man can be supposed to find even these restrictions on his life and happiness reasonably tolerable.
An earlier part of the ruling describes "a supposed difference between discreet and confrontational behaviour" (P70). These are just two markers on a spectrum of behaviour - markers which don't necessarily mark the ends of the spectrum. They are also socially defined, but as the request is coming from UK agencies I think it's only fair to use a UK understanding. And this is where Michael White of The Guardian comes undone.
Silly me thought the Guardian might be a little less reactionary to this, but oh no. White shamefully equates 'discretion' with 'not kissing in public' which highlights just how much of an understatement 'discretion' is in this whole scenario.
Take buying a gay magazine for example: 'Confrontational' might be demanding that a shop stock it openly on shelves. 'Proudly' may be openly buying it, publicly reading it. 'Openly' may be reading it in your home and leaving it in the magazine rack/coffee table. 'Discreetly' may be keeping it in your room where you expect an extra level of privacy. 'Privately' might be having it delivered in plain packaging and actively hiding it. What of someone fearful of persecution? Not buying it at all. Having no access to the material (political and social). That's beyond being 'discreet' or careful.
What about meeting with others? 'Discreet' might be going to a nearby town for a weekly meeting. What about when that meeting is discovered and someone goes "hang on, X is always on the bus to that town on Wednesdays...". What the UK is asking is not 'discretion' but outright denial of who they are. Any queer person who has ever been in the closet will be able to tell you the difference between hiding and discreet and the effect this has on mental health.
ETA another thought: A couple of the judges reference a paper by Jenni Millbank - From discretion to disbelief: recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom which, from their summaries seems to suggest that an increase in scrutiny of claims of sexuality will occur. Lord Rodger, thankfully, allows us to bypass the tricky questions of exact identification by allow "gay or treated as he were gay" to be considered, but will we soon see cases where the courts are asked to decide someone's sexuality? A court approved test for determining someone's sexuality?
Overall this is a wonderful Judgement and Lord Rodger should be commended for his part in the judgement, not condemned for the Kylie & Cocktails comment which has been unfairly reported by the media.
Alex
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