Unpacking the Boxes: Legibility and LGBTIQ+ Asylum Seekers

Guest post by Dr Brandy Cochrane and Lotte Wolff. Brandy is a lecturer and researcher in Criminology at Victoria University. Brandy’s first research stream focuses on consequences of border securitisation/crimmigration on marginalised people, including the LGBTIQA+ population and mothers. Their second stream focuses on gender/sexuality’s intersections with violent extremism. Brandy received a PhD from Monash University in 2017 and an MS from Portland State University in 2012. Lotte is a graduate consultant with Nous Group who has a Master of Arts (development studies) and a Bachelor of Arts (liberal arts and sciences). She has researched/presented on asylum-seeking for LGBTI+ individuals in Australia and the Netherlands and provided ethics training at the Ethics Office of the UNHCR (UN Refugee Agency). Lotte also has experience working for two non-government organisations based in Switzerland, as well as UNAIDS (the United Nations program on HIV/AIDS).

While all people seeking asylum must have a credible or ‘tellable’ narrative to become legible or recognisable and achieve fairness within the system, for LGBTIQ+ applicants this process of becoming legible is fraught with further stereotypes, misconceptions and biases from decision-makers.

Lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ+) people have been seeking asylum in Australia since at least the mid-1990s under the Refugee Convention. Since then, LGBTIQ+ refugee applicants have navigated the complexities of the migration system with the added complexity of sexuality and gender as a challenge to Western ideas of how lesbians, gay men, transgender, intersex and queer people. This includes appearance, gender roles, dating history, surgical changes or a myriad of other factors.

In our study with legal representatives of LGBTIQ+ asylum seekers in Australia, we were struck by the demands of Western adjudicators that the applicants have to conform to their understandings of how lesbian, gay, bisexual, trans and queer people should behave. In this blog post, we argue that queer legibility refers to the process of becoming legible that is specific to LGBTIQ+ applicants navigating a cis-hetero-sexist migration regime.

The significance of theorising queer legibility is that the current system prioritises legible queer identities. Legibility, in this article, refers to the process of becoming legible that is specific to LGBTIQ+ applicants navigating a cis-hetero-sexist migration regime. This perpetuates the dominance of specific Western, dominant identity groups and is rooted is sexism, biphobia and transphobia. It furthermore reinforces the forced categorisation of queer applicants into LGBTIQ+ labels. Scholars have called this a ‘universalised gay identity’ risks normalising Western sexuality and gender categories thereby marginalising and othering non-Western labels.

Scholars outside of Australia have written about the need for asylum applicants to ‘perform’ Western notions of sexuality or identity to be seen as worthy of refugee status. Studies have found that:

• ‘immigrants must present themselves as gendered and sexual beings recognizable (and acceptable) to immigration and court officials’.
• Decision-makers are more likely to grant refugee status when the person seeking asylum adopts Western standards of queer identities and a ‘sexual asylum story’ that centres around sex and relationships. This includes an expectation by decision-makers that gay men are ‘flamboyant’ or ‘outspoken’.
• Decision-makers hold Eurocentric views and stereotypes that expect homosexual men to have stereotypically feminine characteristics and homosexual women to have stereotypically masculine qualities.

Previous literature on refugee decisions in Australia has echoed how this performance of identity in a way understood by a Western adjudicator, is embedded within the Refugee Status Determination process for LGBTIQ+ applicants. Millbank writes ’because the decision-makers were ... unable to find a meaning for that experience – other than their own projected meaning – it simply did not make sense to them’. Furthering her research in this area, Millbank found that decision-makers relied on ‘preconceptions as to what a gay identity necessarily entails’. A 2008 Report by the New South Wales Gay and Lesbian Rights Lobby based on RSD Tribunal decisions between 2000 and 2007, found evidence of stereotypical ‘gay lifestyles’ being expected of applicants. There are also critiques about how gender affirmation surgery for applicants to prove they are transgender has been an expected assumption by decision makers.

Not only are LGBTIQ+ asylum seekers expected to act in a certain way, they are also expected to present a linear and coherent chronological narrative to the decision-makers. Decision-makers expect a fixed, discoverable sexual identity rooted in shame and concealment, with a clear liberatory end-point of self-actualisation. Not only does this cause an expectation of a universality of all narratives, it also places an emphasis on publicly demonstrable identity affirmed through a ‘coming out’.

The Canberra Statement on the access to safety and justice for LGBTIQ+ people seeking asylum, people with a refugee background and other forcibly displaced persons highlights the priorities for reform in Australia in relation to LGBTIQ+ asylum, settlement and other support for LGBTIQ+ people in forced displacement. The main points of this Statement, written by LGBTIQ+ refugees, is that rigid gender binaries, Western notions of sexualities and heteronormative assumptions in the refugee status determination process hinder people’s ability to seek protection. However, these are all hallmarks of the current system of Refugee Status Determination within Australia. Our upcoming publications will add to this body of literature, specifically on how legal representatives play a double role of shepherding their clients to the most legible label for the most positive outcome of the individual, but also how this further emphasizes Western categorizations of gender and sexuality.

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