A recent UK Supreme Court case concerned the deportation of gay asylum seekers. As the UKSC blog explained:
Under the Convention on the Status of Refugees, members of particular social groups (which can include groups defined by their sexual orientation) are entitled to asylum where they can establish they would face a well-founded fear of persecution if they returned to their home states. The issue concerned the extent to which those who seek asylum will, if returned to their countries of origin, be able to conceal, or at least be discrete about, characteristics of themselves which give rise to the fear of persecution. The Supreme Court unanimously overturned the Court of Appeal’s decision that it was permissible to return a person if they would conceal their sexuality in order to avoid being persecuted, provided their situation could be regarded as “reasonably tolerable”. To compel gay people to pretend their sexuality does not exist is to deny him his fundamental right to be who he is. Simple discriminatory treatment does not give rise to protection under the Convention, but the Convention does not envisage applicants being returned to their home country “on condition” they take steps to avoid offending their persecutors.
The full judgement is available here.
Aidan O’Neill has written Some Reflections on Religion, Sexuality and the Possible Transatlantic Implications of the HJ (Iran) v. Home Secretary [2010] UKSC 31
In HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 the UK Supreme Court held that gay people cannot properly be required or expected under international asylum/refugees to conceal their sexuality/pass as straight to avoid State sponsored but usually religiously inspired persecution in their home countries. The central point about the UKSC decision is that the court rejects the cogency of any distinction between acting on one’s sexual orientation and being of a particular sexual orientation. It was argued by the Home Office that it could properly send back avowedly gay men to Iran and Cameroon respectively on the basis that, if they were to be discreet (not – openly – act on their sexual orientation) they would not invite persecution…
He goes on to review some American legal comment on the decision, and concludes:
…what seems to concern the Professor and what he seems to be driving at, is a suggestion or feeling that the specifically religious motivation for discriminatory attitudes and practices resulting in State persecution, should be worthy of some respect and deference from the courts. But his objection to Lord Hope’s use of the word “misguided” itself seems to be misguided, in that it is clear from the passage quoted that Lord Hope was not there seeking to make any theological point, or to suggesting that the anti-gay views expressed were not in fact true expressions of the particular religious beliefs described. Rather the tenor of the whole court’s decision in HJ (Iran) is that those religious beliefs when acted upon are morally wrong because inimical to the proper respect for individual human dignity that is incumbent upon all States and societies.
The (anti-relativist) realization that there are absolute moral values (captured in the concept of “human rights”) which are not culturally relative or religiously specific and which States and societies and religions must protect and promote in order to have legitimacy is a post WW11/post-Nuremberg phenomenon common to the political/legal cultures of the civilised world. An expression by the court that the actions by another State or significant religious or cultural or political non-State institutions within that state contravene fundamental human rights is very much the province and duty of the judge. There is no usurpation of power in the judges so doing in this particular case.
As Warsaw prepares for Eastern Europe’s first EuroPride event, the threats are already flying. When we watch rainbow flags versus skinheads with church hierarchs cheering on the thugs, let’s remember who the real moral relativists are.
Disappointing that Adrian O’Neill falls into the old reactionary canard of implicitly accusing his opponents of meta-ethical cultural relativism. Those of us who are a little cautious about elevating the language of Human Rights to the level of holy writ are not necessarily moral relativists (who is? I’ve never met one), nor are we unfriendly to the aims of human rights rhetoric – we are simply suspicious of attempts to make the language of Human Rights an ends rather than a means. While we don’t deny that there might be “absolute moral values,” we are suspicious of the claim that… Read more »
This is another example of the secular world showing its ability to clearly discern the moral course of action, while the church (or religion generally) is blinded by its own sanctified bigotry. This is unfortunately how the secular world sees religious people, as the leading source of prejudice, discrimination and hatred of others. So the ABP can describe human rights as a second order concern, while maintaining silence over the presecution of LGBTs in the name of unity. WWJD?
I was most grateful when “badman” immediately flagged up the handing down of this judgment on an earlier thread. Now it is interesting to read what Aidan has to say. There can be no doubt that this is a very significant point for lesbian and gay people, the implications of this judgment are immense, and it seems not only for the UK. It can only be a very short time till active discrimination against gay people by ALL people and organisations in the UK will have to cease. Far from extending the ability to discriminate against gay people as (sadly!)… Read more »
rjb ‘And this is where the claims of religion have to be taken seriously.’ They are indeed being taken seriously; unfortunately that is the problem, as Lord Hope observed: ‘More recently, fanned by misguided but vigorous religious doctrine, the situation has changed dramatically. The ultra-conservative interpretation of Islamic law that prevails in Iran is one example. The rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa is another. The death penalty has just been proposed in Uganda for persons who engage in homosexual practices. Two gay men who had celebrated their relationship in a… Read more »
Here’s one for thinking about, however, from someone who is gay and from the US now living in the UK. In the US we took a very distinct position that sexual orientation was not a choice. That put gay men and lesbians on a par with African Americans, Hispanics and racial minorities for legal, civil rights purposes. A lot of effort was put into opposing reparative therapy to show that that was empirically true. The escape hatch was the category of bisexuality: a third way that involved choice. Having lived in the UK for six years, it is absolutely clear… Read more »
“a *lot* of people (given certain constraints of class, education etc.) would see themselves as marginally open to same-sex behaviour without considering themselves bisexual (or probably anything else).”
Based upon my experiences as a gay man in 70s and 80s America, this is also historically true for a lot of men here. There were (and possibly are) a lot of men who would “fool around” with another guy, without ever considering themselves anything but straight. But they do not talk about it.
If religion is a protected identity (and certainly one cannot argue that religion is a fixed thing like race or national origin), I see no reason why sexual orientation (whether “chosen” or not) should not also be protected.
‘The UKSC seems to be buying in to an American model’ I think you need to acquaint yourself with the way our Courts work; you may be overlooking the fact that our Judges are not elected, nor are they appointed by politicians. Furthermore, strange as it may seem, what happens in the USA is not something which overly troubles our Courts until it becomes a matter for them; extraordinary rendition is one example, and the ongoing legal proceedings bear witness to that fact. Lord Hope noted that: ‘The Court was referred to a number of decisions in Australia, New Zealand,… Read more »
Incidentally, I should perhaps add that Lord Millett dissented from the Judgements of Lord Steyn, Lord Hoffmann, Lord Hope and Lord Hutton in the Islam v. Secretary of State case I have referred to above. But he specifically asserted that: ‘Thus I would accept that homosexuals form a distinct social group. In a society which subjected practising homosexuals but not non-practising homosexuals to persecution the relevant social group would still consist of homosexuals, not of the subset practising homosexuals. A non-practising homosexual would have no difficulty in establishing that he was a member of a persecuted group. His only difficulty… Read more »
chenier1: My point was a jurisprudential one, which had to do with the standard of decision (I know that the judicial appointments commission appoints judges here. Political? I couldn’t possibly comment). Generalizing that way: sauce for the goose (sauce being a metaphor) doesn’t necessarily deal with the empirical question of whether being gay is immutable. I used to believe it was; now, I’m not sure that it doesn’t depend on circumstances. It was immutable for me, but the reasoning of the case reduces ‘dignity’ to ‘identity’, and I’m not entirely sure that that’s going to serve long term interests in… Read more »
Scott
Would you not be able to include bisexuals in your definition of people likely to suffer from homophobic persecution? After all, all the pressure groups rightly support lgBt people. And the persecution will, in any case, be based on the homosexual element in a bisexual person and will therefore be indistinguishable from persecution of 100% gay or lesbian people.
Scot Peterson One point which may have escaped your otherwise comprehensive analysis of our legal system is that the Law lords do not function in the way the Supreme Court in the States does. The stand-off between the Court of the Appeal and the House of Lords, in which the Court of Appeal had absolute power to block the way to the House of Lords, but the House of Lords had absolute power to make final decisions once a case got there, was resolved in 1966 in order to enable their Lordships to over-rule themselves; they still create binding precedent,… Read more »
Lord Millett dissented from the Judgements of Lord Steyn, Lord Hoffmann, Lord Hope and Lord Hutton in the Islam v. Secretary of State case I have referred to above. But he specifically asserted that: ‘Thus I would accept that homosexuals form a distinct social group. In a society which subjected practising homosexuals but not non-practising homosexuals to persecution the relevant social group would still consist of homosexuals, not of the subset practising homosexuals. A non-practising homosexual would have no difficulty in establishing that he was a member of a persecuted group. His only difficulty would be in establishing that his… Read more »
Religion is not immutable, either. The issue is about persecution and/or discrimination, not the mutability of the characteristic which evokes that persecution or discrimination, surely.
The court’s explanations offer us yet another example of how it really works; along with a growing-immense range of additional commentary from nearly every important cultural sector – self-regarding orthodoxist religions possibly being the key exception to the corrective changes involving us all. Spinning all that consensus as empty, facile modernity, falsely caught up in its own rush to be perceived as fashinable – is, what? Not the deep, authentic religious revelation it so often preaches itself to be? Two provisional impacts seem fairly clear by now. Firstly, our religious anthropologies need to be open-ended and capable of correction and… Read more »
Erika, I think we *need* to include bisexual people in order to take my issue seriously that sexuality may be a more fluid thing than the doctrinal position in the United States would admit. The problem is that building a legal doctrine on immutability may not do all that we’re asking it to do if there are a significant number of bisexuals (who could by definition just engage in sex with people of the opposite gender) or if sexuality is fluid. With me, it’s not, and that’s why I was always happy with the US approach. But for a lot… Read more »
Scot If a person was seeking asylum and could demonstrate that their life was in danger because they were in a relationship with someone of the same sex, presumably, that alone would qualify. The fact that they might, possibly, also be physically and emotionally capable of having a heterosexual relationship does not reduce the danger they’re in one little bit. Is this really about defining sexual orientation, or is it rather about recognising that people are being persecuted because of how others see them? Other way round – could you conceivably foresee a situation where someone can prove physical persecution… Read more »
Minorities are the creations of majorities.
Pantycelyn ‘This term is very offensive to me. Just think about it. Just think EQUALITY.’ As I have mentioned in commenting on an earlier article, the Law Lords are bastions of tradition and of precedent; they are not radical ahead-of-the-trend people. I appreciate that you are distressed by Lord Millett’s use of language, but 11 years ago the use of the term gay was not nearly as common as it is today. 11 years ago Lord Millett was an accurate prophet as to the way in which gay people like Jeffrey John might be tormented, and he spoke out unequivocally… Read more »
I think he deserves you to cut him some slack…
Posted by: chenier1 on Wednesday, 21 July 2010 at 12:38am
Yes, I see. Thank you for helping me with that.
(It is the term ‘practicing homosexual’ that makes me see red — especially the ‘practicing’.) I can see that matters less than all you pointed out that he has done for us.