Asylum Denied: The Grim Irony of Proof of Sexuality Edicts

United_States_Court_of_Appeals_for_the_Seventh_Circuit_Seal.svgLast week the U.S. Court of Appeals for the 7th Circuit issued a decision:that a  bi Jamaican asylum-seeker isn’t actually bisexual. As in Orashia Edwards recent Uk asylum case, Fuller found that his claim of bisexuality was rejected because of his relationships with women.  

If a documented history of relationships with more than one gender does not equal ‘bi’, what can we do? Holly Matthies tackles the thorny issue of ‘proving’ your sexuality.

My first exposure to the news of Ray Fuller’s failed asylum case was a tweet from Bisexual Index. “Horrifying,” it said. “Not bisexual because he’s attracted to women, asylum judge rules.”

My first response was to write When we say “Biphobia kills,” it’s not hyperbole. People don’t know what bisexuality is, and that harms bisexuals. It’s not the only way biphobia can be deadly, of course, but for anyone to be deported to a country where it’s dangerous to be perceived as an in any way non-heterosexual, thanks only to a lack of a basic understanding of bisexuality, seems a particularly sad and frustrating example of how lethal biphobia can be.

In years of slurs, insults and misconceptions, I’ve never yet heard that a man can’t be bisexual if he’s attracted to women.

In my experience of bisexual activism and being a mostly-openly bi person, I’ve heard a lot of ridiculous, cruel and inaccurate things about bisexuals: from the usual stuff (we’re “really” straight or gay, we’re just going through a phase, or that no men are bi but all women are) all the way to hearing someone confuse it with bestiality. But in years of slurs, insults and misconceptions, I’ve never yet heard that a man can’t be bisexual if he’s attracted to women.

A three-judge panel reviewed an immigration judge’s previous decision to deny asylum to Ray Fuller, a 51-year-old Jamaican who’s lived in the U.S. since 1999 but has had his residency revoked after being convicted of a serious crime. The decision was based on a lot more than the headlines – there are inconsistencies in some of the details he’s provided as part of his account of biphobic or homophobic attacks and ostracism he suffered in Jamaica – but it is also true that the immigration judge did not believe Fuller is bisexual and was unsatisfied with his attempts to prove that he is.

When I first read this, I tried to imagine how I could prove my sexuality. How could anyone? Especially if ex-partners wouldn’t testify. (Just trying to think about my exes like this made me grossed-out and even a little guilty for imagining reducing them to their usefulness in such a scenario!) As Biscuit themselves tweeted, “Who of us could? What would be used as a measure? Is our right to asylum based on how high we are on the Kinsey?”

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Information on and understanding of bisexuality are so severely lacking that government officials are more likely to think (as was the case with another Jamaican, Orashia Edwards, whose three-year case ended in January) that a straight person is feigning gayness to claim asylum, than that a person might ever legitimately have an interest in more than one gender.

“Immigration judges and asylum officers have full discretionary power in presiding over asylum claims,” academic Ray Sin says in a paper on the subject. And since an immigration judge is free to use whatever beliefs she personally holds to help make her decisions, “bisexual claimants are significantly less likely to be successful because of the invisibility of bisexuality as a sexual identity…In short, bisexuals are deemed ‘not gay enough.’ ”

Frustratingly, this is the opposite approach from that historically taken by the U.S. (and Canada, and no doubt other countries) when it comes to potential immigrants.

About a 1981 case, Ray Sin says “the court was upholding the ‘one drop rule of homosexuality’.” A person’s “heterosexual priors were of little importance, even though he had had only one homosexual relationship.” One relationship or encounter deemed to be “homosexual” would be enough to get a foreign-born bisexual deported as a sexual deviant who would spread the germ of non-heterosexuality and put undue pressure on welfare benefits (all things genuinely declared to be true by American and Canadian governments at the time!).

“Anything in between the polemic ends of the sexual spectrum was assumed to mean homosexuality,” Sin says. And it is not unreasonable to expect the same is true in any homophobic country to which such a person could be deported. Fuller’s relationships and sexual encounters seem to have involved both men and women for as long as he’s been having them, and this didn’t stop him being knifed, shot and kicked out of a family home while he lived in Jamaica. If you’re shot for being at a party with a boyfriend, it probably won’t help much to try to explain to your attacker that you’ve also sometimes had girlfriends.

As long as asylum judges continue using a much stricter metric than homophobic countries do for who faces persecution, abuse and death, there will be people put in danger by “too gay” to be safe in their home countries yet “not gay enough” to be allowed to stay in the country where they sought asylum. The higher the standard for “gay enough” is set by the asylum process, the wider this gulf becomes and the more people will suffer because of being too gay for home and not gay enough to stay in safety.
You can read the Court’s decision here.

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Holly Matthies

Holly is a bisexual immigrant to the UK. She lives in Manchester and volunteers with lots of projects relating to bisexuality, disability, and other ways to make people's lives better.

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