Patrolling the Borders of Sexual Orientation:
Bisexual Refugee Claims in Canada
Sean Rehaag*
Canadas current definition of a refugee includes
those
facing persecution on account of sexual
orientation. This article demonstrates that the success
rates for sexual-minority refugee claims are similar to the
success rates for traditional refugee claims. However,
one subset of sexual-minority refugee claimants, those
alleging a fear of persecution on account of bisexuality,
is far less successful.
The author contends that a major cause of the
difficulties bisexual refugee claimants encounter is the
dominant understanding of sexual orientation as an
innate and immutable personal characteristic. This view
of sexual orientation underlies contemporary Canadian
sexual-minority refugee law. The life experiences of
many bisexual asylum seekers, however, cannot be
easily located within such an understanding. This leads
many refugee adjudicators to approach accounts of
bisexual life narratives with skepticism.
Drawing from the tradition of queer theory, the
author concludes that refugee adjudicators should
embrace an alternative understanding of sexual
orientation that can accommodate a multitude of sexual-
minority life stories. This understanding views sexual
orientation as flexible and fluid. The author presents
specific ways in which such an understanding may be
applied to decision making regarding sexual-minority
refugee claims. All encourage decision makers to focus
not on the sexual identity of claimants but rather on
evidence of their persecution on account of traditional
gender roles and compulsory heterosexuality.
Au Canada, la dfinition dun rfugi inclut ceux
faisant face la perscution en raison de leur orientation
sexuelle. Cet article dmontre que les taux de succs
pour ces demandes sont similaires aux taux des
demandes ordinaires de statut de rfugi. Nanmoins,
une sous-catgorie de demandes dasile provenant de
minorits sexuelles, celles fondes sur la crainte dtre
perscut en raison de la bisexualit, ont beaucoup
moins de chance dtre accueillies favorablement.
Lauteur soutient que les difficults auxquelles font
face les demandeurs de statut de rfugi bisexuels
rsultent en grande partie de lide prdominante parmi
les arbitres selon laquelle lorientation sexuelle est inne
et est un trait de caractre immuable. Cette vision de
lorientation sexuelle sous-tend
le droit canadien
contemporain de limmigration des minorits sexuelles.
Les expriences de vie vcues par plusieurs de ces
personnes bisexuelles sont
toutefois difficilement
comprhensibles selon cette conception. La situation
mne plusieurs arbitres faire preuve de scepticisme
envers les rcits de vie des personnes bisexuelles.
Sinspirant de la thorie queer, lauteur conclut
que, dans le contexte du droit de limmigration, les
arbitres devraient adopter une conception alternative de
lorientation sexuelle qui serait en mesure daccueillir
une multitude de rcits de vie des minorits sexuelles.
Cette conception caractriserait lorientation sexuelle
comme flexible et fluide. Lauteur prsente des moyens
spcifiques dappliquer cette conception aux dcisions
quant aux demandes de statut de rfugi venant de
minorits sexuelles. Toutes ces mthodes encouragent
les arbitres mettre laccent non pas sur lidentit
sexuelles des demandeurs mais plutt sur la preuve de
leur perscution en raison de rles traditionnels attribus
aux sexes et dune htrosexualit obligatoire.
* Sean Rehaag, B.C.L., LL.B (McGill), S.J.D. Candidate (Toronto). This article was written while I
was a Visiting Scholar at the Center for Gender & Refugee Studies of the University of California,
Hastings College of the Law, and at the Canada Research Chair on International Migration Law,
Universit de Montral. I would like to thank Franois Crpeau, Evan Fox-Decent, Ummni Khan,
Julie Lassonde, Robert Leckey, Nicole LaViolette, Audrey Macklin, Viviane Namaste, B.J. Wray, and
the anonymous reviewers at the McGill Law Journal for their helpful comments and suggestions.
Sean Rehaag 2008
To be cited as: (2008) 53 McGill L.J. 59
Mode de rfrence : (2008) 53 R.D. McGill 59
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Introduction
I. Canadian Sexual-Minority Refugee Law
A. The Refugee Definition: Immutably Queer
B. A Mixed Success: Claims Based on Sexual Orientation
C. A Dismal Failure: Claims Based on Bisexuality
II. Toward a Queer Refugee Jurisprudence
A. The Myth of Bisexuality (or its a phase)
B. Heterosexual Privilege and Homosexual Behaviour
(or doubling ones chances on a Saturday night)
C. Bisexual Erasure (or but I didnt choose to be gay)
D. Queering Canadian Refugee Law (or beyond sheep
and goats)
Conclusion
2008]
S. REHAAG BISEXUAL REFUGEE CLAIMS IN CANADA
61
we they us come together
in a somewhat different combination
as we discover we are also they
and they may not be who they seem to be
Shlomit Segal1
sometimes men love women
sometimes men love men
and then there are bisexuals
though some just say theyre kidding
themselves
Lalalala lalala …
Phoebe Buffay, a character on the
sitcom Friends, singing a song she
wrote for children2
Introduction
It is possible to claim refugee status in Canada by alleging a fear of persecution
on account of sexual orientation. In this article, I demonstrate that the grant rates for
refugee claims by members of sexual minorities are similar to the grant rates for
traditional refugee claims. However, one subset of sexual-minority refugee claimants,
those alleging a fear of persecution on account of bisexuality, is significantly less
successful.
This article contends that one cause of these differing grant rates is the logic
underpinning refugee jurisprudence regarding sexual minorities. I argue that this
jurisprudence reflects an essentialist understanding of sexual identity as an innate and
immutable personal characteristic. However, the life experiences of many bisexual
refugee claimants challenge or trouble3 such an understanding of sexual identity.
The results are potentially devastating: bisexual refugee claimants are at serious risk
of having their cases improperly assessed because their life experiences are easily
misunderstood. One of the principal aims of this article is therefore to set out
suggestions to assist practitioners and adjudicators in accommodating the experiences
of bisexual refugee claimants.
A second and more general aim of the article is to argue that the difficulty in
reading the lives of many bisexual refugee claimants against an essentialist
understanding of sexual identity lends these cases a broader significance. Bisexual
refugee claims mark a borderan unruly edgein struggles by adjudicators to
understand sexual orientation. In so doing, they offer a useful lookout over the terrain
1 The Rules of the Game in Leela Acharya et al., eds., Plural Desires (Toronto: Sister Vision:
Black Women and Women of Colour Press, 1995) at 43.
2 Cited in Jennifer Baumgardner, Look Both Ways: Bisexual Politics (New York: Farrar, Straus and
Giroux, 2007) at 6.
1990) [Butler, Gender Trouble].
3 Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge,
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on which other legal controversies involving sexual minorities are likely to take
place.
It is with this second aim in mind that this article engages in undoing essentialist
approaches to sexual identity. To this end, I do not merely advocate a more inclusive
homobihetero spectrum as a replacement for the prevalent homohetero binary
approach to innate sexual identities.4 Rather, I argue that we must pay more attention
to thosewhether bisexual or otherwisewho do not display easily identifiable
innate and immutable sexual identities. In attempting to enhance the visibility of
stories, acts, and identities of multiple sexual minorities, the article draws on the
tradition of queer theory.5 As such, beyond merely offering an account of judicial
struggles in order to come to grips with troubling sexual identities, it aspires to
celebrate and take pleasure in the exciting destabilization and disorientation of gender
and sexuality.6
The article proceeds by first examining the context in which bisexual refugee
claims are embedded. To this end, I survey the development of Canadian sexual-
minority refugee jurisprudence. I contend that this jurisprudence reflects an
essentialist view of sexual orientation as an innate and unchangeable personal
characteristic. I also demonstrate that, on average, this understanding has served most
sexual-minority refugee claimants reasonably well. I then disaggregate my analysis,
turning to the specific context of bisexual refugee claimants. I show that bisexual
claimants face disproportionate difficulty communicating their stories of persecution
to adjudicators, often because their experiences challenge the judicially endorsed
account of sexual orientation. Finally, drawing on queer theory and literature
engaging with bisexuality, I recommend a number of strategies to encourage the
Canadian refugee system to better accommodate the full diversity of sexual-minority
refugee claimants.
Before moving on to the analysis, it is worth making a brief note about
terminology. Throughout this article I use the terms queer and sexual minorities
interchangeably to cover a wide range of sexual and gender identities that challenge
heteronormativity. I choose to avoid the more conventional label LGBT (Lesbian,
4 Alfred Kinsey famously articulated an understanding of sexual orientation whereby exclusive
heterosexuality and exclusive homosexuality are viewed as poles on a spectrum of sexual preferences.
According to Kinsey, a substantial proportion of the American population find themselves, during at
least some periods of their lives, somewhere between these poles. See generally Alfred Kinsey et al.,
Sexual Behavior in the Human Male (Philadelphia: W.B. Saunders, 1948) [Kinsey et al., Human
Male]; Alfred Kinsey et al., Sexual Behavior in the Human Female (Philadelphia: W.B. Saunders,
1953).
5 See generally Judith Butler, Undoing Gender (New York: Routledge, 2004); Michel Foucault, The
History of Sexuality: An Introduction, trans. by Robert Hurley, vol. 1 (New York: Vintage Books,
1990); Carol Queen & Lawrence Schimel, eds., PoMoSexuals: Challenging Assumptions About
Gender and Sexuality (San Francisco: Cleis Press, 1997).
6 See e.g. Butler, Undoing Gender, ibid. at 80 (sometimes it is the very disjunction between gender
identity and sexual orientation … that constitutes for some people what is most erotic and exciting).
63
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2008]
Gay, Bisexual, and TransgenderTranssexual) due to a concern that such language is
unnecessarily restrictive. The terms queer and sexual minorities serve my present
purposes because their boundaries are blurred and explicitly invite contestation. As
such, they can accommodate unconventional sexual and gender identities beyond
those of gays, lesbians, bisexuals, and trans persons.7 Admittedly, any choice of
terminology in this area is controversial. I acknowledge that many members of what I
am calling queer and sexual-minority communities object to my chosen terminology
on the grounds that it may underplay the long-standing political efforts of gays and
lesbians to establish visible and politically recognized subject positions.8 Though I
share this concern, I believe the advantages of nonexclusionary terminology outweigh
its costs.
I. Canadian Sexual-Minority Refugee Law
Canada, like many other countries, has a shameful record when it comes to its
treatment of sexual minorities. As names like Joe Rose,9 Kenneth Zeller,10 and Aaron
Webster11 attest, many Canadians have paid with their lives for being queer.12
Moreover, the violence visited upon sexual minorities has by no means been
restricted to extralegal forms. On the contrary, Canadian law, since its inception, has
systemically mistreated sexual minorities.13
In spite of this history, Canada now has a deservedly progressive reputation on
sexual-minority issues when compared with many other countries in the world.
7 Examples include, but are not limited to, pansexuals, asexuals, swingers, sado-masochist subjects,
polyamorists, fetishists, cross-dressers, drag performers, two-spirited, intersexes, and those who
simply refuse to have their sexuality defined.
8 For an excellent discussion of the debates surrounding queer terminology, see Francisco Valdes,
Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of Sex, Gender, and Sexual
Orientation in Euro-American Law and Society (1995) 83 Cal. L. Rev. 3 at 346-50. See also Judith
Butler, Bodies That Matter: On the Discursive Limits of Sex (New York: Routledge, 1993) at 223-
42 [Butler, Bodies]. For a discussion of subject positions more generally, see Jukka Trrnen, The
Concept of Subject Position in Empirical Social Research (2001) 31:3 Journal for the Theory of
Social Behaviour 313 at 313-17.
9 Joe Rose was stabbed to death on a Montreal bus by a group of youths shouting slurs such as
faggot. See Cynthia Petersen, A Queer Response to Bashing: Legislating Against Hate (1991) 16
Queens L.J. 237 at 246.
10 Kenneth Zeller was killed in a Toronto park popular among gay men by a group of five youths
who had previously told witnesses they were going faggot beating (R. v. H.J.J., [1985] O.J. No.
2008 at para. 5 (Ont. S.C.) (QL)).
11 Webster was beaten to death by a group of men who came upon him naked in a Vancouver park
known as a meeting place for gay men seeking sex (Robert Matas, Angry Vancouver Gays Mourn
Victim of Slaying The Globe and Mail, Toronto ed. (19 November 2001) A7).
12 See generally Douglas Victor Janoff, Pink Blood: Homophobic Violence in Canada (Toronto:
University of Toronto Press, 2005).
University of Toronto Press, 1999).
13 See generally Kathleen A. Lahey, Are We Persons Yet? Law and Sexuality in Canada (Toronto:
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Vibrant and visible sexual-minority communities exist in all Canadian urban centers.
Openly queer Canadian business leaders, politicians, academics, and artists abound,
as do representations of sexual minorities, both in the media and in popular culture.14
While challenges remain, Canadian law now makes serious attempts to protect the
human rights of sexual minorities. Perhaps most significantly, discrimination on the
basis of sexual orientation is now prohibited, either explicitly or implicitly, in all
Canadian human-rights legislation.15
In stark contrast, many countries around the world continue to criminalize same-
sex sexual relations. Extralegal violence against those perceived to be queer is also
commonplace in these countries, and sexual minorities are forced to remain
underground to avoid persecution and prosecution.16
In this context, Canada has become something of a destination state for sexual
minorities fleeing human-rights abuses abroad. On arrival, many such sexual
minorities make refugee claims.
A. The Refugee Definition: Immutably Queer
Canadas Immigration and Refugee Protection Act17 defines a refugee as
a person who, by reason of a well-founded fear of persecution for reasons of
race, religion, nationality, membership in a particular social group or political
opinion, is outside each of their countries of nationality and is unable or, by
reason of that fear, unwilling to avail themself of the protection of each of those
countries.18
Refugee claimants must, therefore, demonstrate a connection between the harm
feared in their home country and a listed ground of persecution. This list does not
explicitly include sexual orientation.
14 See generally Terry Goldie, ed., In a Queer Country: Gay and Lesbian Studies in the Canadian
Context (Vancouver: Arsenal Pulp Press, 2001); Alex Spence, Gay Canada: A Bibliography and
Videography (Toronto: Canadian Scholars Press, 2002).
15 See e.g. Charter of Human Rights and Freedoms, R.S.Q. c. C-12, s. 10; Human Rights Act, S.Nu.
2003, c.12, s. 7(1); Egan v. Canada, [1995] 2 S.C.R. 513, 124 D.L.R. (4th) 609 [Egan cited to S.C.R.]
(holding that sexual orientation is a prohibited ground of discrimination under equality provisions of
the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (U.K.), 1982, c. 11); Vriend v. Alberta, [1998] 1 S.C.R. 493, 156 D.L.R. (4th)
385 [Vriend cited to S.C.R.] (reading sexual orientation into Albertas human rights legislation).
16 See generally Amnesty International Lesbian, Gay, Bisexual & Transgender Network, online:
Amnesty International Lesbian, Gay, Bisexual & Transgender Network
Human Rights Watch, Lesbian, Gay, Bisexual, and Transgender Rights, online: Human Rights
Watch
online: International Gay and Lesbian Human Rights Commission
17 S.C. 2001, c. 27 [IRPA].
18 Ibid., s. 96 [emphasis added]. This provision is based on the refugee definition set out in the
Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 2545, Can. T.S. 1969 No. 6
(entered into force 22 April 1954), art. 1.A(2).
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2008]
Some sexual-minority refugee claimantsparticularly gay-rights activistshave
succeeded in characterizing the mistreatment they fear in their home country as
involving persecution on account of political opinion or religion.19 The vast majority
of sexual-minority refugee claimants, however, attempt to fit themselves into the
residual category of those facing persecution on account of their membership in a
particular social group.
Initially, this strategy met with some resistance.20 The first published21 Canadian
sexual-minority refugee decision, Re R. (U.W.),22 reflects the early ambivalence of
refugee adjudicators on the question of whether sexual minorities constitute particular
social groups for the purposes of refugee law. The case involved a Uruguayan gay
man who had been caught in a police raid. In the years following his identification by
Uruguayan authorities as a homosexual, he was repeatedly brutalized by police
officers. While the two Immigration and Refugee Board of Canada (IRB) members
hearing the claim found the claimants testimony credible, both held that he did not
qualify for refugee status.23
The first IRB member, Rotman, accepted that [h]omosexuals … form a particular
social group. It is [a] right of conscience or human dignity that … individuals should
not be required to change their sexual preference … 24 While Rotman acknowledged
that those persecuted due to their homosexuality can, in principle, benefit from
refugee protection, he nonetheless refused to accord refugee status in this particular
case, on the grounds that the claimant could have obtained protection from
persecution domestically. Rotman noted that the police attacks suffered by the
claimant were illegal under Uruguayan law. He therefore suggested that the
claimants appropriate recourse, rather than fleeing abroad, was to seek protection in
Uruguay by complaining
the police
mistreatment.25
The second IRB member, Leistra, agreed with Rotman in the result. However, she
disagreed with Rotmans assertion that homosexuals form a particular social group
local authorities about
to Uruguayan
19 See e.g. Re C.Y.T., [1998] C.R.D.D. No. 186 (QL). For a further discussion of the possibility of
using political opinion and religion as a basis for sexual-minority refugee claims see text
accompanying notes 178-86.
20 See generally Nicole LaViolette, The Immutable Refugees: Sexual Orientation in Canada (A.G.)
v. Ward, Case Comment, (1997) 55 U.T. Fac. L. Rev. 1 at 15-18 [LaViolette, Immutable].
21 Only a small fraction of decisions in the refugee field are published. For a further discussion see
text accompanying notes 55-57.
22 [1991] C.R.D.D. No. 501 (QL).
23 When Canadas new immigration legislation came into effect in June of 2002, it put an end to
refugee hearings with two IRB Members presiding (IRPA, supra note 17, s. 163).
24 Re R. (U.W.), supra note 22, Rotman. This reasoning reflects the principle that refugee protection
is offered only as a surrogate form of protection, that is to say, when protection from persecution
cannot be obtained locally (James Hathaway, The Rights of Refugees under International Law
(Cambridge: Cambridge University Press, 2005) at 4-5).
25 Re R. (U.W.), ibid.
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for the purposes of refugee law. According to Leistra, prohibitions on deviant sexual
behaviour are essential for preserving the heterosexual family, which is, in her view,
the very foundation of society.26 Leistra, moreover, asserted that international law
recognizes the right of states to establish laws regulating sexual behaviour. While she
accepted that this right is limited by international human-rights instruments
prohibiting discrimination, she noted that, in these instruments, [n]o mention of
sexual orientation is made.27 Finally, although she acknowledged that states ought
not to impinge on protected privacy interests in their regulation of sexual behaviour,
she suggested that privacy rights apply only to sexual acts committed within the
home:
Sexual activity … falls under the laws that guarantee privacy of the family
If sex, partaken of in public places or in public houses, is prohibited by law
and the home.
in a country then that law is to be obeyed by the citizens of that country. …
It would be foolhardy to flaunt ones sexual preference in the face of ones
country[s] legally established laws which prohibit expression of open sexual
activities … judged … to be objectionable … 28
Leistra concluded that due to the legitimate authority of states to regulate public sex,
those who suffer mistreatment because they flaunt their objection to these laws (i.e.,
uncloseted homosexuals) do not fall within the refugee-law definition of a particular
social group.29
In the years following this decision, the case law continued to reflect sharp
disagreement over whether sexual minorities fall within the refugee-law definition of
a particular social group. Some IRB members concurred with Rotmans holding that
homosexuals do.30 For many, a key reason for considering homosexuals to be a
particular social group was the notion that homosexuality is an immutable personal
26 Leistra states:
From mans earliest recorded history we find that all human expression … was directed
by, … laws based on religion. …
All [such religious laws] … admonish their adherents to refrain from certain sexual
expressions …
[T]hey all speak about the fundamental value of the family as a unit in the pyramid of
society. No … nation could function without this basic unit (ibid.).
27 Ibid.
28 Ibid. [emphasis added].
29 Ibid. It must be said that Leistras reasoning here is decidedly problematic. Among a plethora of
possible objections is the way she curiously imagines that by failing to hide ones sexual preference
(i.e., to flaunt), one is, in effect, objecting to laws regulating public sex. Apparently, for Leistra, to
be (openly) homosexual means to engage in, or at least to support, public sex.
30 See e.g. Re T. (K.B.), [1992] C.R.D.D. No. 430 (QL); Re L. (M.D.), [1992] C.R.D.D. No. 328
(QL); Re J. (F.H.), [1993] C.R.D.D. No. 98 (QL); Re N. (K.U.), [1991] C.R.D.D. No. 1140 (QL). See
also LaViolette, Immutable, supra note 20 at 15-16.
S. REHAAG BISEXUAL REFUGEE CLAIMS IN CANADA
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characteristic. The following comments in a positive decision involving a gay man
from Argentina are typical: If I accept … that homosexuality is an immutable
characteristic, that alone, in my opinion, suffices to place homosexuals in a particular
social group.31 Similarly, in a case involving a gay man from Cuba, the IRB member
noted:
67
Homosexual men are a particular social group insofar as they share an
immutable characteristic … Especially telling for this claimant, is that his
grandmother took him for medical treatments in the attempt to change his
behaviour (the way he talked and his body language) but that this proved
impossible.32
Other IRB members, however, have refused to characterize homosexuals as a
particular social group.33 In one case involving a gay man from Poland, IRB member
Lamoureux even went so far as to distinguish between asocial groups and social
groups:
A group will be asocial if the human beings who form it are not adapted to the
social life of the society in which they live … A group will be social if the
human beings who form it interact harmoniously with the social structures in
which they live.34
Lamoureux went on to suggest that homosexuals fall into the former category
because heterosexuality is the very foundation of society, ensuring its continuity …
The group to which the claimant in the case before us belongs is an asocial group …
35 Interestingly, Lamoureux also rejected the notion that homosexuality is an
immutable characteristic:
[H]omosexuals … constitute a group of persons having certain common
characteristics … The complexity of homosexuality does not allow us to find that
homosexuals have no control over these characteristics.36
In 1993, the Supreme Court of Canada put an end to this controversy in its
landmark decision, Canada (A.G.) v. Ward.37 In Ward, the Court had to determine
whether the category of membership in a particular social group was sufficiently
flexible to accommodate a group defined by its members former involvement in
terrorist organizations. The case involved a claimant whose life was at risk in the
United Kingdom because he deserted an Irish terrorist organization after a crisis of
31 Re N. (L.X.), [1992] C.R.D.D. No. 47 (QL), Teitelbaum [emphasis added]. A second IRB member,
Colle, dissented in the result, but concurred on this particular point, noting I find that the claimant is a
member of a particular social group because of his homosexual orientation. I conclude this constitutes
an innate and fundamental personal characteristic (ibid.) [emphasis added].
32 Re V. (O.Z.), [1993] C.R.D.D. No. 164 (QL) [emphasis added].
33 See LaViolette, Immutable, supra note 20 at 17-18.
34 Re X. (J.K.), [1992] C.R.D.D. No. 348 (QL), Lamoureux, revd [1994] C.R.D.D. No. 92 (QL).
35 Ibid.
36 Ibid. [emphasis added].
37 [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1 [Ward cited to S.C.R.].
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conscience led him to free hostages who were to be executed.38 The Court took the
opportunity to define systematically the term particular social group. Writing for a
unanimous court, Justice La Forest noted that the particular social-group category
involves a distinction between what one is [and] what one does, at a particular
time.39 Viewing this distinction through the lens of human rights and anti-
discrimination [themes] that form the basis for the international refugee protection
initiative,40 Justice La Forest identified three types of particular social groups:
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(1) groups defined by an innate or unchangeable characteristic;
(2) groups whose members voluntarily associate for reasons so fundamental to
their human dignity that they should not be forced to forsake the association;
and
(3) groups associated by a former voluntary status, unalterable due to its
historical permanence.41
La Forest gave specific examples of each type of group, noting that [t]he first
category would embrace … gender, linguistic background and sexual orientation.42
While these remarks were clearly obiter dictum, subsequent to the decision, there
was no longer any serious contention at the IRB that those fleeing persecution on
account of sexual orientation are ineligible for refugee protection.43 The Court in
Ward thus put an end to the controversy over sexual-minority refugee claims by
establishing that sexual orientation falls within the ambit of the social-group category
in Canadian refugee law. Equally important for our purposes is that Ward, as with the
prior positive decisions at the IRB level, indicated that sexual orientation falls within
the particular social-group category because sexual orientation is an innate and
unchangeable characteristic.
As we will now see, due in part to the way that sexual orientation came to be
included into Canadian refugee law, some sexual minorities still have a particularly
challenging time accessing refugee protection.
B. A Mixed Success: Claims Based on Sexual Orientation
Since Ward, sexual-minority refugee claimants have enjoyed mixed success in
their attempts to obtain refugee status.
In the most extensive study of its kind, Catherine Dauvergne and Jenni Millbank
examined all published decisions involving sexual-orientation-based refugee claims
38 See ibid. at 689-701.
39 Ibid. at 738-39 [emphasis in original].
40 Ibid. at 739.
41 Ibid. [emphasis added].
42 Ibid. [emphasis added].
43 See LaViolette, Immutable, supra note 20 at 22.
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in Canada during the early post-Ward years, from 1994 to 2000.44 They identified 127
such decisions, the majority of which involve gay men, with only 14 per cent
involving lesbian claimants.45 One case involved a bisexual claimant.46
According to the Dauvergne & Millbank study, the success rates in these cases
were 52 per cent and 69 per cent for gay and lesbian claimants respectively,47 leading
to an overall success rate of 54 per cent.48 To put these numbers into context, the
average grant rate for all refugee claims made in Canada from 1994 to 2000 was 60
per cent.49 Thus, the success rate in published sexual-minority refugee decisions was
only slightly lower than the overall grant rate for all refugees during the same period.
To see whether this pattern continued, I identified and reviewed 115 published
IRB refugee decisions and 45 Federal Court decisions involving sexual-minority
refugee claims from 2001 to 2004.50 As with the Dauvergne & Millbank study, men
were overrepresented in these decisions. Out of all 160 cases, only 30 (19 per cent)
involved women.
The success rates for sexual-minority claimants in these decisions were
significantly lower than the rates identified in the Dauvergne & Millbank study. In
fact, the success rate in sexual-minority IRB decisions was a mere 9 per cent,
representing 9 per cent for men and 10 per cent for women.51 In the Federal Court
cases, the rate of decisions in favour of sexual-minority claimants was somewhat
higher: 31 per cent overall, representing 37 per cent for men and 10 per cent for
44 See Catherine Dauvergne & Jenni Millbank, Burdened by Proof: How the Australian Refugee
Review Tribunal Has Failed Lesbian and Gay Asylum Seekers (2003) 31 Fed. L. Rev. 299 at 302.
See also Jenni Millbank, Gender, Sex and Visibility in Refugee Claims on the Basis of Sexual
Orientation (2003) 18 Geo. Immigr. L.J. 71 at 72-77 [Millbank, Visibility]; Jenni Millbank,
Imagining Otherness: Refugee Claims on the Basis of Sexuality in Canada and Australia (2002) 26
Melbourne U. L. Rev. 144 at 148 [Millbank, Otherness].
45 Dauvergne & Millbank, ibid.
46 Millbank, Visibility, supra note 44 at 93, n. 98.
47 Dauvergne & Millbank, supra note 44.
48 Ibid. at 149.
49 United Nations High Commissioner for Refugees, Statistical Yearbook 2003: Trends in
Displacement, Protection and Solutions (Geneva: UNHCR, 2005) at Statistical Annex I, Annexes
C. 7, C. 9, online: United Nations High Commissioner for Refugees
number of positive refugee decisions at first instance in Canada during this period (84,237) by the sum
of positive and negative decisions (140,752)).
50 The 115 IRB cases were obtained by reviewing 143 cases from 2001 to 2004 found by searching
the terms homosex! or lesbi! or bisex! or bi-sex! or gay or sexual orientation or transsex! or transex!
or transgender in Quicklaws Canada Immigration and Refugee Board, Refugee Protection Division
Decisions database. The 45 Federal Court cases were obtained by reviewing 73 cases from 2001 to
2004 found by searching the terms refugee and homosex! or lesbi! or bisex! or bi-sex! or gay or
sexual orientation or transsex! or transex! or transgender in Quicklaws Federal Court, Group Source
database.
51 For the success rates of bisexual claimants, see Part I.C.
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women. The combined success rate for published decisions on sexual-minority
refugee claims at both the IRB and the Federal Court, then, was 15 per cent,
representing 16 per cent for men and 10 per cent for women. Once again, to put these
numbers into context, the average grant rate for all decisions on refugee claims made
in Canada from 2001 to 2004 was 52 per cent.52 The success rate in published
decisions on sexual-minority refugee claims during this period was thus significantly
lower than the grant rate for refugee claims in general.
As Millbank correctly points out, however, it is difficult to draw conclusions
based on such statistics.53 Most refugee decisions in Canada are unreported,54 and no
effort is made to ensure that reported decisions are a representative sample of the
larger pool of decisions. To the contrary, decisions are selected for publication by the
IRB when they raise unusual fact situations or a new approach to issues.55 It is,
therefore, likely that the selected decisions are highly unrepresentative.
To address this methodological challenge, information from the IRBs internal
database can be used to supplement the analysis of reported decisions. This database
is not directly accessible to the general public. As with other government records,
however, these materials can be accessed through formal Access-to-Information
procedures.56
According to materials provided by the IRB in response to an Access to
Information Request,57 1351 sexual orientation-based claims were decided at the IRB
in 2004.58 Male claimants were again significantly overrepresented: only 19 per cent
52 See United Nations High Commissioner for Refugees, Statistical Yearbook 2005: Trends in
Displacement, Protection and Solutions (Geneva: UNHCR, 2007) at Statistical Annex II, Annexes
C. 8, C. 11 [UNHCR, Yearbook 2005], online: United Nations High Commissioner for Refugees
the number of positive refugee decisions at first instance in Canada during this period (62,184) by the
sum of positive and negative decisions (119,962)).
53 Otherness, supra note 44 at 149.
54 Moreover, refugee adjudicators are generally not required to provide written reasons for positive
decisions unless specifically requested to do so by the party or the Minister of Citizenship and
Immigration. See Refugee Protection Division Rules, S.O.R./2002-228, s. 61(1)-(2).
55 Immigration and Refugee Board of Canada, About RefLex (June 2002), s. 3.4, online:
Immigration and Refugee Board of Canada
56 See Access to Information Act, R.S.C. 1985, c. A-1.
57 See Letter from Immigration and Refugee Board of Canada to Sean Rehaag in response to an
Access to Information Request by the author on 11 October 2006, IRB File Number A-2006-00061 (6
November 2006) [IRB Response] [unpublished, on file with author].
58 To be more precise, this figure represents the number of refugee decisions at the IRB where the
claimant was the principal applicant, where the claim was assessed at an early stage in the refugee-
determination process as being based (at least in part) on persecution on account of sexual orientation,
and where a decision was mailed to the claimant in 2004. Note that this information collected in the
IRB database is used primarily for the administrative purpose of assigning cases to adjudicators. As a
result, once a case has been assigned, the IRB does not take steps to correct erroneous
characterizations in its database regarding the type of persecution involved.
71
S. REHAAG BISEXUAL REFUGEE CLAIMS IN CANADA
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of the decisions involved female claimants. The grant rates59 in sexual-orientation
cases in 2004 were 49 per cent overall, 48 per cent for female claimants, and 50 per
cent for male claimants. That compares to a total 40,408 refugee claims decided at the
IRB in 2004,60 with an average grant rate of 45 per cent.61
We can thus see that the startlingly low grant rate in published IRB decisions on
sexual-minority refugee claims from 2001 to 2004 (9 per cent from 2001 to 2004) is
not representative of the actual IRB grant rate for sexual-minority refugee claims (49
per cent in 2004). In fact, the actual grant rate for sexual-minority claimants exceeds
the average grant rate for all refugee claimants.
It would appear, then, based on both the Dauvergne & Millbank study covering
the 19942000 period, as well as the 2004 internal IRB statistics, that sexual-minority
refugee claims are, on average, approximately as successful as traditional refugee
claims.
The Dauvergne & Millbank study also undertakes a particularly helpful
qualitative analysis of sexual-orientation decisions. After reviewing the 127 decisions
identified for the 19942000 period, Millbank concludes that refugee adjudicators
often have a difficult time hearing the stories of sexual-minority claimants whose
identities do not match adjudicators preconceptions.62
Millbank cites one particularly disturbing example of this phenomenon in a case
where the IRB denied a refugee claim brought by a Colombian lesbian. In that case,
the IRB member stated:
The claimant presents as an articulate, professional, well-groomed, and
attractive young woman. Based on all of these considerations … the panel
cannot conclude that the claimants sexual orientation would be physically
obvious to intolerant and bigoted segments of Colombian society.63
The IRB could not hear the claimants narrative of persecution because the claimant
did not fit the IRB Members stereotypical and fixed image of so-called butch
lesbians. As Millbank notes:
Being visibly lesbian … is … strangely unquestioned as a static, essentialized
appearance devoid of the possibility of choice or change. What if the applicant
had just dressed up that day to impress the tribunal? What if she is a femmey
59 Throughout this paper, grant rates refer to the proportion of positive decisions relative to the sum
total of positive and negative decisions. These figures exclude cases that were declared abandoned or
withdrawn.
60 See UNHCR, Yearbook 2005, supra note 52 at Annex C. 11 (the total number of decisions at first
instance includes 5,223 abandoned, withdrawn or otherwise closed claims).
61 See ibid. (the average claim grant rate was calculated by dividing the number of positive refugee
decisions at first instance in Canada in 2004 (16,005) by the sum of positive and negative decisions
(35,185)).
62 Otherness, supra note 44 at 177.
63 Re P.W.Z., [2000] C.R.D.D. No. 47 at para. 6 (QL).
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lipstick lesbian … ? What if Colombian lesbians do not look like Canadian
lesbians? Or what if most lesbians do not look like lesbians?64
Problematic stereotypes are not, of course, restricted to lesbians. Some IRB
members, for example, appear to imagine all gay men as effeminate. Such a view is
evident in the following comments in a case involving a gay man from Bulgaria:
The panel does not believe that [the claimant] was beaten … by skinheads
on account of his homosexuality, since he does not openly display it. Even …
the man said to be his lover testified that: [translation] He is not effeminate. I
love him. He looks very masculine.
which would have motivated skinheads to beat him.65
The panel considers that … the claimant does not look like a homosexual,
This view was also reflected in a case involving a claimant from Mexico, where the
IRB member stated:
Counsel also made reference that if the claimant returned to Mexico, that
now that he is openly gay, he would be more obvious as being a homosexual
due to how he dresses and carries himself. However, I note that the claimant at
his hearing presents as a very masculine, athletic man.66
In addition to these stereotypes about the effeminacy of gay men, some IRB
members seem to believe that all gay menregardless of age, race, class, linguistic
background, or immigration statusspend a great deal of time in gay bars and clubs.
Those who do not, especially during their time in Canada, are likely to have their
sexual identity questioned by the IRB. The following comments in a recent case
involving a man from Pakistan provide a good example:
When asked if he was aware of the gay community in … Toronto, … the
claimant said he knew there were bars but he could not go as it was too
expensive.
Because the claimant could not name any … gay bars … , the panel draws an
adverse credibility inference … 67
Along similar lines, the IRB makes the following comments about a singular
gay reality in a recent case involving a man who feared persecution in Mexico on
account of his sexual orientation:
[W]ith the goal of determining whether … the claimant is gay, the panel asked
him about his social activities since arriving in Canada. We asked him if he
64 Visibility, supra note 44 at 103.
65 Re W.R.O., [2000] C.R.D.D. No. 284 at para. 5 (QL), affd Atanassov v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 445, 105 A.C.W.S. (3d) 495.
66 Valdes v. Canada (Minister of Citizenship and Immigration), [2004] R.P.D.D. No. 140 at para. 29
67 Akhtar v. Canada (Minister of Citizenship and Immigration), [2004] R.P.D.D. No. 804 at paras.
14-16 (QL) (the panel also noted the absence of documentation of the claimants sexual orientation in
reaching their decision).
(QL).
2008]
S. REHAAG BISEXUAL REFUGEE CLAIMS IN CANADA
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went to the gay bookshop and he answered No. … We asked him if he went to
gay bars or discotheques in Montreal … The claimant explained … that he went
more often to the downtown bars. Because of his … ignorance of the gay reality
…, I find that the claimant is not credible.68
these comments
that
is
The problem with
they reflect stereotypical
understandings of what sexual-minority members and lifestyles look like. However,
as contemporary scholars of intersectional approaches to identity politics have
persuasively demonstrated, identity cannot be imagined in such terms without erasing
more complex subject positions.69 Thus, for example, to speak of the gay reality as
being built around queer bookstores and discotheques demonstrates a serious lack of
sensitivity to intersectional considerations such as gender, race, class, linguistic
background, and immigration status. Such a view fails to consider that some sexual-
minority refugee claimants may simply inhabit different gay realities. In these
realities, high-end English- and French-language bookstores and expensive bars and
clubs may play a less than central role.
A concern for such intersectional considerations leads Millbank to suggest that in
order to understand how refugee adjudicators treat sexual orientation claims, it is
essential to disaggregate ones analysis. In particular, she notes that while refugee
adjudicators commonly employ the term homosexuality generically, there are stark
gender differences in the experiences of lesbians and gay men and the subsequent
translation of these experiences into legal categories.70 Specifically, violence against
lesbians is often coded as occurring in the private sector (i.e., in families and
homes), whereas violence against homosexuals is understood to occur mainly in
public spaces (i.e., in parks and in the vicinity of gay bars and clubs).71 This
privatepublic characterization poses different sets of problems for gay and lesbian
claimants: gay men may be in danger of having their claims rejected on the grounds
that they inappropriately transgressed social mores by displaying their sexuality too
publicly; lesbians risk having their claims denied on the grounds that their
persecution was merely a private matter.72
In addition to differences between the experiences of lesbians and gay men, there
are also differences in how various subsets of sexual minorities have their identities
translated into legal categories. As we have seen, the notion that sexual orientation is
an innate and immutable characteristic played a central role in the development of
Canadian refugee jurisprudence.73 It is thus perhaps not surprising that those sexual
minorities (including gays and lesbians) who present their sexual identities as either
68 Re K.Q.H., [2003] R.P.D.D. No. 136 (QL) at para. 11 [emphasis added].
69 See generally Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and
Violence Against Women of Color (1991) 43 Stan. L. Rev. 1241.
70 Otherness, supra note 44 at 157.
71 Ibid.
72 Ibid. at 177.
73 See text accompanying notes 37-43.
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flexible or chosen encounter difficulties translating their life narratives into terms that
fit in the legal categories established by this jurisprudence.
After reviewing sexual-minority decisions of the Australian Refugee Review
Tribunal, Millbank expresses concern about the reaction of refugee tribunals to
refugee claimants who present their sexual identity as chosen or flexible:
[Vol. 53
In situations where the applicant was seen as having some choice, or their
sexuality in any way fluid or temporary … the Australian tribunal, in particular,
was very reluctant to accept them as actually gay and therefore eligible under
the social group category.74
The same phenomenon appears to be present in the Canadian context. For
example, in one particularly troubling case involving a man from Ukraine, the IRB
member outright denied the possibility of choosing to be gay:
When asked if his mother knew [about his sexual orientation], the claimant
replied that she understood correctly his choice. The claimant was asked to
confirm that he made the choice to be gay and he did so. I do not accept this as
reasonable. The claimant is a well-educated man who understood the
consequences of being gay. It is unreasonable that such a man would choose a
life style which would inevitably cause him problems.75
The IRB members inability to countenance the possibility that a well-educated man
might adopt a gay lifestyle by choice is profoundly disturbing. Here we see the
confluence of the view of sexual orientation as innate and immutable with an
implicitly negative view of homosexuality. Together, these views serve to erase the
sexual identity of a claimant who dares to forward an alternative understanding.76
Similarly worrying is that where a sexual-minority refugee claimants sexual
behaviour shifts over time, the IRB may read such changes as indicative of fraud and
misrepresentation. It is common, for example, for the IRB to cite evidence of a
history of cross-sex sexual relations as a reason for doubting a claimants asserted
identity as a member of a sexual minority.77 The most troubling example of this
phenomenon occurs when evidence of purportedly inconsistent sexual practices is
used by the government in applications to vacate prior positive refugee decisions on
74 Visibility, supra note 46 at 93 [emphasis added].
75 Kravchenko v. Canada (Minister of Citizenship and Immigration), [2004] R.P.D.D. No. 384 at
para. 8 (QL) [emphasis added].
76 Notwithstanding such attempts at erasure, many sexual-minority writers insist that they have
chosen their sexual identities. See e.g. Vera Whisman, Queer by Choice: Lesbians, Gay Men, and the
Politics of Identity (New York: Routledge, 1996).
77 See e.g. Khrystych v. Canada (Minister of Citizenship and Immigration), [2004] R.P.D.D. No. 339
at paras. 6-8 (QL), revd 2005 FC 498, 138 A.C.W.S. (3d) 918 (holding that the claimants account of
his homosexuality was not credible or trustworthy, partly on the basis that he did not offer a
satisfactory explanation for evidence of sexual relationships he had maintained with women in the
past); Davydyan v. Canada (Minister of Citizenship and Immigration), [2004] R.P.D.D. No. 288 at
para. 17 (QL) (holding that a claimants long-lasting past marriages with women cast doubts on his
contention that he was homosexual).
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the grounds of fraud or misrepresentation.78 In a recent case involving an application
to vacate a positive sexual-minority refugee decision, the IRB upheld both the
admissibility and relevance of evidence that the claimant engaged in post-hearing
sexual behaviour that it viewed as incompatible with the sexual identity asserted at
the hearing.79 In upholding the admissibility of the evidence, the IRB noted:
[T]he fact that the respondent has had girlfriends after he became a refugee
would seem relevant to the issue of his homosexuality which, of course, was
one of the grounds upon which he was granted refugee status. …
While generally speaking events that occur after the period before one obtains
refugee status would be irrelevant the case is different when what is being
referred to is not static but a continuing situation, such as sexual
orientation … In these situations current evidence may be of use to assess an
earlier story.80
In other words, because sexual orientation is presumed to be immutable, evidence of
sexual practices that depart from an asserted sexual orientation are relevant to
establishing fraud and misrepresentation, even if those practices occur a significant
amount of time after the initial refugee hearing. It would seem, then, that when
claimants asserted sexual identities or sexual practices change over time (much as
when claimants assert that their sexual identity is partly a matter of choice), the IRB
believes that they must be lying.81
Both the Dauvergne & Millbank study and my review of more recent published
and unpublished refugee decisions thus support my assertion that sexual-minority
refugee claimants appear, on average, to enjoy success rates similar to those of
traditional claimants. However, where sexual-minority refugee claimants narratives
regarding their sexual identities depart from the stereotypes of refugee adjudicators,
the IRB often finds that the claimants lack credibility. This problem is particularly
acute when claimants recounted narratives do not coincide with the judicially
endorsed understanding of sexual orientation as an unchosen and unchangeable
feature of personal identity.
As we will now see, bisexual refugee claimants have especially problematic run-
ins with adjudicators stereotypes in general, and with belief in the innate and
immutable nature of sexual orientation in particular.
C. A Dismal Failure: Claims Based on Bisexuality
The 1993 Ward decision established that persons with a well-founded fear of
persecution for sexual orientation are, in principle, eligible for refugee protection.
78 See IRPA, supra note 17, s. 109.
79 See Re L.E.W., [2005] R.P.D.D. No. 19 (QL).
80 Ibid. at paras. 18-19 [emphasis added].
81 For a critique of this practice, see text accompanying notes 128-36.
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However, it took a further seven years before the first published decision involving a
bisexual refugee claimant, Re B.D.K.,82 confirmed that Ward applies to bisexuals.
Re B.D.K. involved a Mexican bisexual transvestite who, in the words of the IRB
member, prefers relationships with men.83 The claimant, who had a wife and son, as
well as a male lover, was beaten and sexually assaulted by the police when he came
to the assistance of several other transvestites who were being similarly brutalized.
The claimant was then singled out for further brutality when the police learned of the
existence of his wife and child.84 The IRB member accepted the claimants asserted
sexual and gender identities,85 noting that the claimant appeared at the hearing
dressed as a woman.86 The IRB member also accepted the claimants account of
persecution at the hands of the police, relying on country-condition documentary
evidence establishing that police persecution of transvestites was common. Without
explicitly raising the question of whether bisexuals (or transvestites) constitute a
particular social group, the IRB member simply found that the claimant would be
persecuted in Mexico because of … membership in a particular social group, that is,
a bisexual man who prefers men and being a transvestite.87
That Re B.D.K. turns largely on the claimants identity as a transvestite is
significant, for it constitutes the only published decision where an explicitly bisexual
refugee claimant has obtained refugee status in Canada.88 In the Dauvergne &
Millbank study, of the 127 published decisions on Canadian sexual-minority refugee
claims identified from 1994 to 2000, only Re B.D.K. involved a bisexual claimant.89
More recently, of the published sexual-minority refugee decisions I identified from
2001 to 2004,90 eight involved bisexual claimants.91 Two additional published
82 [2000] C.R.D.D. No. 72 (QL).
83 Ibid. at para. 1.
84 Ibid. at para. 2.
85 Ibid. at para. 5.
86 Ibid. at para. 2.
87 Ibid. at paras. 7-8 [emphasis added].
88 But see Romero v. Canada (Minister of Citizenship and Immigration), in which a bisexual
claimant succeeded in a judicial review of a negative IRB decision (2005 FC 1705, 144 A.C.W.S. (3d)
1086). The review turned on an error committed at the IRB with respect to the claimants ability to
avoid persecution by moving to a third country to which the claimant did not have an automatic right
of entry. Note that a successful judicial review does not lead to the claimant acquiring refugee status,
but rather to a new hearing at the IRB.
89 See Millbank, Visibility, supra note 44 at 93, n. 98.
90 See text accompanying notes 50-52.
91 See Aire v. Canada (Minister of Citizenship and Immigration), 2004 FC 41, 245 F.T.R. 187 [Aire];
Christopher v. Canada (Minister of Citizenship and Immigration), 2004 FC 1128, 133 A.C.W.S. (3d)
151; Re G.I.F., [2001] C.R.D.D. No. 138 (QL); Re O.O.P., [2002] R.P.D.D. No. 139 (QL); Re B.K.K.,
[2003] R.P.D.D. No. 2 (QL); Re K.O.C., [2003] R.P.D.D. No. 420 (QL), revd Rassan v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1279, 133 A.C.W.S. (3d) 855; Romero v. Canada
(Minister of Citizenship and Immigration), [2004] R.P.D.D. No. 840 (QL) affd 2005 FC 1705, 144
A.C.W.S. (3d) 1086; Re S.C.E., [2004] R.P.D.D. No. 8 (QL). See also Re O.H.R., [2002] R.P.D.D. No.
140 (QL) (the claimant initially alleged a fear of persecution on account of bisexuality, but at the
77
S. REHAAG BISEXUAL REFUGEE CLAIMS IN CANADA
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decisions involved refugees who alleged persecution on account of sexual orientation
and were identified by adjudicators as being either possibly bisexual92 or confused
about their sexual orientation.93 None of these cases resulted in a positive decision for
the claimant.
As we have seen, published decisions are not representative of actual decisions at
the IRB.94 The IRBs database of unpublished decisions, however, confirms that
bisexual refugee claims are seldom successful. According to information provided by
the IRB, 100 cases involving bisexual refugee claimants were decided at the IRB in
2004.95 This compares to a total of 1351 sexual-minority refugee claims resulting in a
decision that year. Bisexual refugee claims thus account for 7 per cent of sexual-
minority claims decided in 2004. It is also worth noting that men were, once again,
overrepresented in bisexual claims: only 15 per cent of bisexual refugee claims
involved female claimants.
The grant rate for bisexual claims at the IRB in 2004 was 25 per cent overall (28
per cent for male claimants, and only 10 per cent for female claimants). This
compares with 49 per cent for sexual-minority claims (50 per cent for men, and 48
per cent for women), and 46 per cent for refugee claims generally during the same
period.96 So while sexual-minority refugee claims in general were slightly more
successful than traditional refugee claims, they were about twice as successful as
bisexual refugee claims. Based on both the published decisions and the 2004 IRB
statistics, it is thus evident that bisexualsparticularly female bisexualsfare poorly
in Canadas refugee-determination process.
Because of the small number of published decisions involved, it is difficult to
offer a substantial qualitative analysis of reasoning employed by the IRB in bisexual-
refugee decisions. Notwithstanding this limitation, a number of tentative observations
are in order. Firstly, in none of the published bisexual cases did the decision maker
consider documentary evidence specific to bisexuals. When decision makers
evaluated the testimony of the bisexual claimants against country-condition evidence,
hearing he indicated that his narrative was a fabrication and he identified alternative grounds of
persecution).
92 Valoczki v. Canada (Minister of Citizenship and Immigration), 2004 FC 492, 130 A.C.W.S. (3d)
360 at para. 17 [Valoczki].
para. 43 (QL) [Gyorgyjakab].
93 Gyorgyjakab v. Canada (Minister of Citizenship and Immigration), [2004] R.P.D.D. No. 698 at
94 See text accompanying notes 53-55.
95 IRB Response, supra note 57. To be more precise, this figure represents the number of refugee
decisions at the IRB where the claimant was the principal applicant, where the claim was assessed at
an early stage in the refugee-determination process as involving a bisexual claimant and as being
based (at least in part) on persecution on account of sexual orientation, and where a decision was
mailed to the claimant in 2004. Note that this information collected in the IRB database is used
primarily for the administrative purpose of assigning cases to adjudicators. As a result, once a case has
been assigned, the IRB does not take steps to correct erroneous characterizations in its database
regarding either the type of persecution involved or the precise sexual identity of claimants.
96 See text accompanying notes 59-63.
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they drew exclusively in their written reasons on evidence relating to persecution on
account of sexual orientation, without considering how experiences of persecution
may vary across specific sexual minorities.97
been decried in the context of gay and lesbian claims:
The inattention to specific conditions faced by particular sexual minorities has
[Vol. 53
Country conditions evaluations which generalize about the experiences of
sexual minorities over time, within a given country, or without regard to the
different social experiences of lesbians as opposed to gay men fail to provide an
accurate picture of the social context in question.98
The failure to consider bisexual-specific country-condition evidence in the published
bisexual cases may raise similar concerns. In one particularly problematic case, the
Federal Court acknowledged that the IRB had mistakenly assessed a bisexual
claimants sexual identity at the hearing. The Court nonetheless went on to uphold the
IRBs finding that the claimant could obtain state protection from persecution:
[W]hile the Boards finding that [the claimant] was not a lesbian was probably
technically correct, the Board did not consider the very real possibility that
[she] was bisexual. However, given the Board’s findings on the issue of state
protection, I am satisfied that this error did not have any impact on the ultimate
outcome of the case.99
In this decision, the Federal Court neglected to discuss whether the error regarding
the precise sexual identity of the claimant (i.e. bisexual rather than lesbian)
necessitated a reconsideration of the claimants ability to obtain protection against
persecution in her home country. In particular, the court did not see the need to
consider whether bisexuals face specific forms of persecution, or whether protection
from persecution available to gays and lesbians was accessible to bisexuals.
Another problematic feature of published bisexual refugee decisions is the
frequency with which decision makers disbelieve claimants assertions about their
sexual identity. In the reasons offered in support of such findings, the term
confusion appears frequently.100 Indeed, adjudicators seem decidedly confused
about how exactly to assess assertions of bisexuality. Particularly worrying are the
97 Of course, bisexual-specific evidence will often be unavailable because few of the organizations
documenting human rights abuses against sexual minorities presently disaggregate their analyses.
However, at a minimum, refugee adjudicators should explicitly note the lack of available bisexual-
specific evidence and then explain to what extent the undifferentiated evidence can be relied upon in
particular cases involving bisexuals. For a further discussion of bisexual-specific persecution and
evidentiary issues, see text accompanying notes 147-59.
98 Arwen Swink, Queer Refuge: A Review of the Role of Country Condition Analysis in Asylum
Adjudications for Members of Sexual Minorities (2006) 29 Hastings Intl & Comp. L. Rev. 251 at
266.
99 Valoczki, supra note 92 at para. 17 [emphasis added].
100 See ibid. (Ms. Valoczkis testimony regarding her sexual orientation was inconsistent and
confusing, to say the least); Gyorgyjakab, supra note 93 at para. 43 (the claimant was asked if she
was still confused about her sexual orientation).
S. REHAAG BISEXUAL REFUGEE CLAIMS IN CANADA
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cases in which evidence of cross-sex relationships is used as proof that the claimant is
not, in fact, bisexual. The following comments in a case involving a woman from Iran
provide a good example of this:
79
The claimant arrived in Canada with a male companion … In response to the
question as to whether they were planning to get married, the claimant replied,
So far there is a commitment but officially we havent signed a paper or
anything. … [The claimants] actions are those of a heterosexual woman.101
A similar use of such evidence also occurred in a case involving a woman from
Hungary who claimed to have been persecuted on account of her bisexuality: [T]he
evidence shows that since last year she has been living with her boyfriend.102
On the whole, claimants allegations regarding their sexual identity were
disbelieved in 63 per cent of the eleven published bisexual refugee decisions
identified from 2001 to 2004. Female claims were disbelieved with greater frequency:
83 per cent for female claimants, compared to 40 per cent for male claimants.
These figures contrast sharply with those for sexual-minority refugee claims more
generally. In the published IRB sexual-orientation claims I identified during the same
period, the claimants asserted sexual identity was disbelieved in 29 per cent of the
115 decisions. These rates did not vary significantly along gender lines: 33 per cent
for female claimants, compared to 27 per cent for male claimants.
We can see, then, that in published decisions from 2001 to 2004, bisexual
claimants were much more likely to have their asserted sexual identity disbelieved
than other sexual-minority claimants. I reiterate that caution must be exercised in
drawing conclusions based on the small number of published bisexual refugee cases.
However, at a minimum, my analysis suggests the advisability of a further study
examining unpublished IRB decisions. It would, in particular, be helpful to know
whether, in unpublished decisions, assertions of bisexuality are disbelieved at a
greater rate than assertions of gay or lesbian sexual identities. Considering the
differences noted in the published decisions, as well as the higher rejection rate for
bisexual claims overall, I predict such a study would reveal that bisexualsand
bisexual females in particularare much more likely to have their asserted identities
disbelieved.
In summary, based on both the published decisions and the IRB statistics
regarding unpublished decisions, bisexual refugee claimants are significantly less
successful than sexual-minority claimants in general. Particularly worrying is that the
IRB appears to neglect the possibility that bisexuals face risks distinct from those
confronting other sexual minorities. Moreover, if the small number of published
decisions are reflective of the overall trend, it would appear that bisexual claimants
especially female bisexual claimantshave a particularly difficult time convincing
decision makers that their alleged sexual orientation is, in fact, authentic.
101 Re K.O.C., supra note 91 at para. 11 [emphasis added].
102 Gyorgyjakab, supra note 93 at para. 43 [emphasis added].
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As I will now suggest, inquiring into how we might think about the challenges
encountered by bisexual refugee claimants highlights the need to rethink the
foundation of sexual-minority refugee law in Canada.
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II. Toward a Queer Refugee Jurisprudence
As we have seen, the Supreme Court of Canada determined in Ward that sexual
minorities are members of a particular social group, and that when they are
persecuted for being members of such a group, they are, in principle, eligible for
refugee protection.103 The Courts rationale for concluding that sexual minorities
constitute a particular social group hinged largely on its determination that sexual
orientation is an innate or unchangeable personal characteristic.104
Queer theory, an interdisciplinary forum examining the complex relations
between gender and sexuality, characterizes such an understanding of sexual
orientation as essentialist.105 Essentialists hold that individuals easily fall into
categories such as gay and straight, based either on biological or early-childhood
psychological factors. As a result, essentialists understand sexual orientation as
inflexible and unchangeable.106 Occasionally, essentialists recognize categories
beyond straight and gay, including, for example, bisexuals and transgendered persons.
The principle nonetheless remains that individuals fall into these categories naturally,
completely, and unchangeably.
Queer theorists, on the other hand, contend that categories such as straight, gay,
and lesbian are constantly reconstructed through socio-historical patterns of regulated
social interaction.107 Based on this understanding, queer theorists suggest that we
should accord more attention to the power dynamics that produce (and exclude
people from) particular subject positions relating to sexual orientation. As Brenda
Cossman explains, Queer theory … seeks to shift the analysis from identity politics
to the representational … processes that constitute sexual identities.108
103 Supra note 37 at 739.
104 Ibid. See also text accompanying notes 37-43.
105 For a general discussion of essentialism, see Diane Fuss, Essentially Speaking: Feminism, Nature
& Difference (New York: Routledge, 1989). See also Brenda Cossman, Sexuality, Queer Theory, and
Feminism After: Reading and Rereading the Sexual Subject (2004) 49 McGill L.J. 847 at 866
[Cossman, Sexuality].
106 See Carl F. Stychin, Essential Rights and Contested Identities: Sexual Orientation and Equality
Rights Jurisprudence in Canada (1995) 8 Can. J.L. & Jur. 49; Nancy J. Knauer, Science, Identity,
and the Construction of the Gay Political Narrative (2003) 12 Law & Sexuality 1; Matthew Waites,
The Fixity of Sexual Identities in the Public Sphere: Biomedical Knowledge, Liberalism and the
Heterosexual/Homosexual Binary in Late Modernity (2005) 8 Sexualities 539.
107 See generally Butler, Gender Trouble, supra note 3; Janet E. Halley, Sexual Orientation and the
Politics of Biology: A Critique of the Argument from Immutability (1994) 46 Stan. L. Rev. 503.
108 Sexuality, supra note 105 at 865-66.
81
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Perhaps not surprisingly, queer theorists disagree about the precise reasons why
essentialist understandings of sexual orientation are so prominent in contemporary
society. Most agree, however, that an important place to begin in understanding this
prominence is the foundational moment in queer social and political life: coming
out.109
Simply put, the logic of coming out is that, whether or not I choose to emerge
from the closet, I am always already queer. When I am in the closet, I am hiding
something fundamental about who I really am. It is only by acknowledging my true
identity, first to myself, and later publicly, that I can begin to lead an authentic and
full life. Such logic presumes that I have a true identity. Lurking beneath my
presumptively heterosexual public persona is an essentially queer substratum. What
makes me queer is the presence of this substratum, irrespective of the sexual identity I
publicly display.110
Given the reality of homophobia, many queer individuals experience their sexual
identity in precisely this manner. These individuals go through long periods of being
unable to publicly or even personally acknowledge what they ultimately come to see
as their sexual orientation.111 As Eve Sedgwick writes:
[The closet] is still the fundamental feature of [gay] social life; and there can be
few gay people, however courageous and forthright by habit, however fortunate
in the support of their immediate communities, in whose lives the closet is not
still a shaping presence.112
One of the reasons, then, for the contemporary prevalence of essentialist
understandings of sexual identity is that they correspond to the life experiences of
many sexual minorities. Moreover, sexual-minority activists, artists, and other
prominent cultural figures have put significant energy and resources into increasing
mainstream societys familiarity with these experiences.113
In addition to these efforts to familiarize society with queer coming-out
narratives, it is important to appreciate that advocates for sexual-minority rights (as
109 See e.g. Kenji Yoshino, Covering (2002) 111 Yale L.J 769 at 816 (What made Stonewall loom
so large was that … [t]he bar itself … could be seen as a symbolic closet, over which gays had finally
wrested control).
110 See especially Eve Kosofsky Sedgwick, The Epistemology of the Closet (Berkeley: University of
California Press, 1990).
111 For an accessible glimpse at individual struggles to come out of the closet, see e.g. Were
Coming Out The Advocate 948 (11 October 2005) 62.
112 Sedgwick, supra note 112 at 68.
113 See e.g. Brokeback Mountain, a film chronicling the tragic consequences of two queer American
cowboys inability to publicly acknowledge their relationship (2006, DVD (Hollywood: Paramount
Pictures, 2006)). Interestingly, the lead characters maintain long-term sexual relationships with both
men and women. While the film has widely been characterized in the media as the first gay western,
it is worth thinking about why it was not characterized as a bisexual western. See e.g. Liam Lacey,
Out of the Closet, Into the Campfire The Globe and Mail (16 December 2005) R6 (Brokeback
Mountain has been hailed for its historic importance as the first openly gay western).
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well as progressive judges) have strong incentives to frame their arguments in
essentialist terms. It is easy to see why this would be the case.
Legal regulation of chosen (and deviant) sexual behaviour has both a long
pedigree and a comparatively intelligible rationale. Resorting to sanctions in this
context allows society simultaneously to mark the behaviour as deviant, and to
discourage people from choosing to engage in the deviant behaviour by imposing
costs on such a choice.114
However, once sexual orientation becomes seen as an innate psychosocial
characteristicbetter yet, a biological characteristicits legal regulation runs afoul
of several central norms in the major western legal traditions. Perhaps the most
notable of such norms is the prohibition on criminal sanction for matters beyond an
individuals control.115 In addition to violating this principle that links legal and moral
responsibility,116 sanctioning a person on the basis of an innate characteristic seems
about as useful as punishing water for running downstream. Even more significant
is that such sanctions conflict with an important and familiar narrative of liberal
progress. This narrative recounts the gradual expansion of the list of ascriptive
characteristics on the basis of which differential treatment is prohibited, beginning
with feudal status, and moving to wealth, race, gender, and beyond.117 By pointing to
what some have termed the immutability defense118that queers cannot help but be
queeradvocates for sexual minorities have thus successfully tied queer rights
claims into each of these important norms and narratives.
When the increased cultural familiarity with sexual-minority coming-out
narratives is combined with the strategic advantages of framing rights claims in
essentialist terms, it should come as no surprise that an essentialist understanding of
sexual orientation played a pivotal role in the development of Canadian sexual-
minority rights jurisprudence.119 Indeed, the immutability of sexual orientation was a
key factor in Egan, the decision of the Supreme Court of Canada that brought sexual
orientation into the ambit of constitutionally prohibited grounds of discrimination.
The Court stated:
[W]hether or not sexual orientation is based on biological or physiological
factors, which may be a matter of some controversy, it is a deeply personal
characteristic that is either unchangeable or changeable only at unacceptable
114 See generally Patrick Devlin, The Enforcement of Morals (Oxford: Oxford University Press,
115 See Stychin, supra note 106 at 59; Halley, supra note 109 at 518.
116 See generally H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law
(Oxford: Clarendon Press, 1968).
117 The actual history of who is included and excluded from liberal communities is, of course,
decidedly more complicated. See generally Seyla Benhabib, ed., Democracy and Difference:
Contesting the Boundaries of the Political (Princeton, N.J.: Princeton University Press, 1996).
118 Kenji Yoshino, The Epistemic Contract of Bisexual Erasure (2000) 52 Stan. L. Rev. 353 at 405
1965).
[Yoshino, Bisexual Erasure].
119 Stychin, supra note 106 at 57.
2008]
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personal costs, and so falls within the ambit of s. 15 protection as being
analogous to the enumerated grounds.120
This passage, which has been picked up in other important cases addressing
sexual-minority rights,121 is only slightly less essentialist than the assertion of absolute
immutability made in Ward. While the passage concedes that sexual orientation may
not be entirely biological, it justifies extending equality rights to sexual minorities
solely on the basis that sexual minorities cannotor can only with great difficulty
change their sexual orientation.122
Queer theory, preoccupied as it is with how sexual identity is constructed, offers a
helpful perspective on the relation between this judicially endorsed understanding of
sexual orientation and the skepticism displayed by IRB members toward sexual
identities that are fluid and flexible. Indeed, when one reads the low success rates of
bisexual refugee claimants through the lens of queer theory, one can see that
skepticism toward flexible and fluid sexual identities is partly constitutive of
contemporary sexual-minority refugee jurisprudence. It is such a reading we will now
turn to in taking a closer look at how we might account for the low success rates of
bisexual refugee claims made in Canada.
A. The Myth of Bisexuality (or its a phase)
One possible explanation for the low success rates of bisexual refugee claims is a
simple one: there is no such thing as bisexuality. Because bisexuality does not exist,
allegedly bisexual refugee claimants must really be economically motivated migrants
making fraudulent claims. Migrants, this reasoning runs, are aware that those fleeing
persecution on account of their sexual orientation are eligible for refugee status. In
order to qualify for refugee status on these grounds despite their apparently
heterosexual behaviour (for example, having a cross-sex spouse or a history of cross-
sex sexual relations), they fabricate stories about fearing persecution on account of
bisexuality. Because the IRB does a relatively good job of detecting fraudulent
claims, grant rates for bisexual claimants are thus understandably low. This
explanation has the added benefit of accounting specifically for the high rates at
which bisexual refugee claimants asserted sexual identities are disbelieved in
published decisions.
There is, however, an obvious problem with such an explanation: if claimants
wish to fabricate false narratives of persecution, it seems strange that they would
120 Supra note 15 at para. 5 [emphasis added].
121 See Vriend, supra note 15 at para. 90; M. v. H., [1999] 2 S.C.R. 3 at para. 64, 171 D.L.R. (4th)
577 [cited to S.C.R.]; Halpern v. Canada (2003), 65 O.R. (3d) 161, 225 D.L.R. (4th) 529 at para. 7.
122 For a persuasive critique of how courts frame sexual-minority equality rights in these terms see
Robert Leckey, Chosen Discrimination (2002) 18 Sup. Ct. L. Rev. (2d) 445.
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choose a narrative that is so singularly unsuccessful. Would it not be strategically
wiser to choose another type of persecution?123
Notwithstanding the forcefulness of this objection, it must be said that this
explanation fits well with a widespread popular view that bisexuality is a myth, and
that all people are, at least in the long run, either gay or straight.124 Jennifer
Baumgardner, a prominent bisexual activist, notes that this view commonly posits
bisexuals are simply going through a phase, and are actually straight but otherwise
experimenting or are really gay but not able to own up.125
The view that all people are, in the long run, either essentially straight or gay
appears to be especially common in sexual-minority communities, where bisexuality
is often viewed as a phase on the path to homosexuality.126 It is, of course, important
to acknowledge that many lesbians and gay men have, in fact, experienced
bisexuality as a transitional identity.127
The interesting question for our purposes, however, is not whether expressed
sexual identities change over timethey clearly can. Rather, the question is whether
it is appropriate to equate an authentic sexual orientation with an underlying essential
characteristic, which persists regardless of ones actual sexual behaviour and
irrespective of
that one both personally and publicly
acknowledges. In other words, is it appropriate to respond to assertions of particular
sexual identities by claiming that those sexual identities are not in fact genuine if
some of the individuals who assert them later adopt a different identity?
To answer this question, it is helpful to consider social-scientific evidence
indicating that sexual identity is complex and fluid. Studies of women who have sex
with women, for example, often find that sexual practices are more complicated than
neat labels would have it. For instance, a study undertaken by Lisa Diamond in 2003
found that two-thirds of women who reported having had sex with other women
during a five-year period also reported having sex with men in the same perioda
the sexual
identity
123 Some might suggest that despite the low success rates, it is nonetheless reasonable to assume that
fraudulent claimants would disproportionately choose to base their claims on bisexuality because the
fluidity and flexibility of bisexuality makes it difficult to detect deception, particularly with reference
to evidence of cross-sex sexual relations. This suggestion, however, untenably presupposes that other
grounds for refugee protectionincluding persecution directed toward homosexuals and lesbians
are insufficiently flexible to accommodate such evidence. There are, for example, refugee decisions
involving persecution on account of gay and lesbian sexual identities where claimants are successful
notwithstanding evidence of sustained cross-sex sexual relations, including cases where cross-sex
spouses accompany claimants to Canada. See e.g. Re V.P.F., [1999] C.R.D.D. No. 191 (QL).
124 See Yoshino, Bisexual Erasure, supra note 118 at 396. For a prominent example of the
argument that all peopleor at least all menare either straight or gay, see e.g. Benedict Carey,
Straight, Gay or Lying? Bisexuality Revisited The New York Times (5 July 2005) F1.
125 Supra note 2 at 4.
126 Yoshino, Bisexual Erasure, supra note 118 at 398.
127 Claire Hemmings, Bisexual Spaces: A Geography of Sexuality and Gender (New York:
Routledge, 2002) at 25-26.
S. REHAAG BISEXUAL REFUGEE CLAIMS IN CANADA
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finding that applied both to women who self-identified as lesbians and those who
considered themselves to be bisexual.128
Studies involving men who have sex with men have produced similar findings
regarding the complexity of sexual identity: many gay men regularly have sex with
women, and many straight men regularly have sex with men.129 As the famous study
by Samuel S. Janus and Cynthia L. Janus in 1993 concluded:
85
[T]here is often a looseness of labeling relative to any particular sex activity. …
[A]lthough there were respondents who identified themselves as heterosexual
and reported having homosexual relations, there were also a number of
respondents who identified themselves as homosexuals and reported that they
have heterosexual relations as well.130
Sexual identity is therefore best understood to involve a degree of fluidity and
flexibility. It is, in this respect, decidedly problematic that the IRB employs evidence
of changes in sexual behaviour over time to cast doubt on the asserted sexual
identities of sexual-minority refugee claimants.131 Even more troubling is when the
government uses evidence of purportedly inconsistent post-hearing sexual behaviour
in applications to vacate successful sexual-minority refugee decisions on the grounds
that the initial decision was obtained through fraud or misrepresentation.132 Both of
these practices are based on assumptions about the rigidity of sexual orientation that
are at odds with social-scientific evidence, which indicates that sexual identity and
sexual behaviour regularly diverge.
Notwithstanding the fluidity and flexibility of sexual behaviour and sexual
identity, it remains important to appreciate that many bisexuals experience their
subject positions as relatively stable. A number of large-scale studies on sexual
orientation have attempted to measure the frequency of relatively stable bisexuality in
the population. Such studies include the Kinsey studies in 1948 and 1953, the Masters
& Johnson study in 1979, the Janus & Janus study in 1993, as well as the Wellings
study and the Laumann study in 1994.133 Yoshino, after conducting an extensive
128 Lisa M. Diamond, Was It a Phase? Young Womens Relinquishment of Lesbian/Bisexual
Identities Over a 5-Year Period (2003) 84 Journal of Personality and Social Psychology 352 at 353.
See also M. Michele Amestoy, Research on Sexual Orientation Labels Relationship to Behaviors
and Desires (2001) 1 Journal of Bisexuality 91 at 94-95.
129 See Preeti Pathela et al., Discordance Between Sexual Behaviour and Self-Reported Sexual
Identity: A Population-Based Survey of New York City Men (2006) 145:6 Annals of Internal
Medicine 416; M. Ross et al., Concordance Between Sexual Behavior and Sexual Identity in Street
Outreach Samples of Four Racial/Ethnic Groups (2003) 30:2 Journal of the American Sexually
Transmitted Disease Association 110; Ritch C. Savin-Williams, Whos Gay? Does it Matter? (2006)
15:1 Current Directions in Psychological Science 40.
130 Samuel S. Janus & Cynthia L. Janus, The Janus Report on Sexual Behavior (New York: John
Wiley & Sons, 1993) at 70.
131 See text accompanying note 78.
132 See text accompanying notes 79-82.
133 For a review of these studies, see Yoshino, Bisexual Erasure, supra note 118 at 378.
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comparative review, finds that in these studies bisexuals are estimated to comprise
anywhere from 0.2 per cent to 15 per cent of the total population.134 The main reason
for these wide-ranging estimates of the frequency of bisexuality is variations in the
way bisexuality is defined. If, for example, bisexuality is defined as the possibility of
responding sexually to individuals of either sex, then virtually everyone is bisexual.
However, if bisexuality is only taken to refer to those people who engage in a
precisely equal number of sexual acts with men and womenor even more narrowly,
those who engage only in sexual acts with men and women simultaneouslythen the
incidence of bisexuality is understandably low.135 While the total number of
individuals identified as bisexual in these studies varied depending on the definition
of bisexuality employed, according to Yoshino, the studies nonetheless share one
surprising conclusion: each study identified a larger number of bisexuals than
lesbians and gays.136
If these studies conclusions regarding the incidence of bisexuality are accurate,
why does the commonplace view that bisexuality is a myth persist? One possible
explanation can be located in a persistent theme in the literature engaging with
bisexuality: bisexuals are largely invisible in both mainstream and sexual-minority
communities.137 In a study on academic and popular media sources in 2000, Yoshino
found that the term homosexuality appears more frequently than the term
bisexuality by several orders of magnitude.138 If the Canadian legal academy can be
taken as representative, it would appear that little has changed since this study was
conducted. As of 2007, the Index to Canadian Legal Literature lists 133 law-journal
articles and texts discussing homosexuals, 128 discussing lesbians, but only 3
discussing bisexuals.139
that social conventions render individual bisexuals invisible:
Robyn Ochs contends that one reason for this lack of attention to bisexuality is
134 Ibid. at 380 [references omitted].
135 For a comprehensive discussion of the different possible definitions of bisexuality, see ibid. at
370-77.
136 Ibid. at 380 [emphasis in original].
137 See Hemmings, supra note 127 at 82-90; Robyn Ochs, Biphobia: It Goes More Than Two
Ways in Beth A. Firestein, ed., Bisexuality: The Psychology and Politics of an Invisible Minority
(Thousand Oaks, CA: Sage, 1996) 217 at 225; Yoshino, Bisexual Erasure, supra note 118 at 364-70.
138 See Bisexual Erasure, ibid. at 368.
139 These results were obtained on 5 March 2007, searching for the terms homosex!, lesbian!
and bisex! in Quicklaws Index to Canadian Legal Literature. Searches of full-text sources offer a
somewhat higher proportion of legal articles touching on bisexuality. For example, a search on the
same date for the same terms in LEXIS Canadian Law Journals database offered 275 articles referring
to homosexuals, 272 referring to lesbians, and 62 referring to bisexuals. The vast majority of the
references to bisexuals in these articles, however, were only in passing. Frequently, the term was
employed only as part of designations of LGBT communities.
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In a culture that assumes that we are all either gay or straight, the presumed
sexuality of an individual bisexual person is usually determined by the person
with whom he or she is or has been known to be romantically involved.140
Ochs also notes that there are few spaces in which a person will be presumed to be
bisexual: In most families, for example, members are presumed to be heterosexual;
conversely, at a womens bar all the women present are presumed lesbians.141
Beyond propagating the myth that there is no such thing as bisexuality, bisexual
invisibility has further troubling implications for bisexual refugee claimants: as a
result of this invisibility, there are few popular images or stereotypes of bisexuality
into which bisexual refugee claimants can fit themselves. As we have seen, sexual-
minority refugee claimants succeed only to the extent that their sexual identities and
experiences of persecution match the stereotypes held by refugee adjudicators.142
Bisexual refugee claimants are thus in the impossible position of having to
substantiate their sexual identity to adjudicators who might not believe that
bisexuality exists, and who do not have a sense of what bisexuals might look like if
they do exist. In my view, this goes some lengths toward explaining the low grant
rates in bisexual-refugee claims in Canada.
One strategy to address this problem would be to work toward enhancing the
visibility of the bisexual community. In the past few years, there have been some
positive steps in this direction. Bisexual life narratives are receiving more attention
than they did in the past, by virtue of the concerted efforts of bisexual writers and
activists.143 It would be advisable for advocates of sexual-minority refugee claimants
to familiarize themselves with these materials so that they may communicate them to
refugee adjudicators. The IRB could also contribute by publishing positive decisions
involving bisexual refugee claimants. Such a move would not only increase the
familiarity of refugee advocates with the specificity of bisexual claims, but also signal
that bisexual cases will be taken seriously. Finally, those involved in bisexual
communities might take an active role in engaging with those working in the refugee
field. Such engagement could take the form of preparing scholarly articles specific to
bisexuality and migration, serving as expert witnesses at refugee hearings, or even
acting as facilitators in IRB training sessions or continuing-legal-education courses.
140 Supra note 137 at 225.
141 Ibid.
142 See text accompanying notes 62-81.
143 For a comprehensive review of recent publications in this area, see Ronald C. Fox, Bisexuality:
A Readers Guide to the Social Science Literature in Ronald C. Fox, ed., Current Research on
Bisexuality (New York: Harrington Park Press, 2004) 161. See also Serena Anderlini-DOnofrio, ed.,
Women and Bisexuality: A Global Perspective (New York: Hawthorn Press, 2003); Dawn Atkins, ed.,
Bisexual Women in the 21st Century (New York: Haworth Press, 2002); Baumgardner, supra note 2;
William E. Burleson, Bi America: Myths, Truths, and Struggles of an Invisible Community (New York:
Harrington Park Press, 2005); Loraine Hutchins & Lani Kaahumanu, eds., Bi Any Other Name:
Bisexual People Speak Out (New York: Alyson, 1991); Merl Storr, Bisexuality: A Critical Reader
(New York: Routledge, 1999).
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B. Heterosexual Privilege and Homosexual Behaviour (or doubling
ones chances on a Saturday night)
If we reject the contention that bisexuality is a myth, another possible explanation
for the low grant rates for bisexual refugee claimants is that, although bisexuals may
exist, they are not subject to persecution because they have access to heterosexual
privilege. As a result, bisexual refugee claimants assertions of persecution are likely
fraudulent, and these fraudulent claims are accurately detected by the IRB.
One frequently encounters assertions that bisexuals benefit from heterosexual
privilege.144 In particular, bisexuals are said to be able to access many civil rights,
including family recognition, that are not accessible to gays and lesbians.145 Indeed,
some authors identify an entire category of persons, termed defense bisexuals, who
maintain cross-sex sexual relations precisely in order to obtain the benefits of
heterosexual privilege, while also engaging in same-sex sexual activities.146
There are, nonetheless, serious reasons to question whether bisexuals can in fact
enjoy the advantages of belonging to heterosexual and homosexual communities
simultaneously. Woody Allen famously quipped that bisexuality doubles ones
chances for a date on a Saturday night.147 However, most bisexual writers suggest that
their experience is exactly the contrary. Rather than enjoying heterosexual privilege,
such writers contend that bisexuals simultaneously confront homophobia from
straight quarters as well as exclusion from many queer communities.148
In homophobic environments, the distinction between bisexuality and other
sexual-minority identities that challenge heteronormativity is seldom made.149 Indeed,
many violently homophobic individuals are likely insufficiently aware of the diversity
of sexual identities in sexual-minority communities to be able to distinguish between
them. To compound these difficulties, sexual-minority spaces where homophobia can
be avoided are often unwelcoming toward bisexuals. Witness, for example, the
refusal of some queer communities to allow bisexuals to participate in gay and
144 Marjorie Garber, Bisexuality & The Eroticism of Everyday Life (New York: Routledge, 2000) at
40; Hemmings, supra note 137 at 78-79.
145 Hutchins & Kaahumanu, supra note 143 at 369.
146 Michael Ross, A Taxonomy of Global Behavior in Rob Tielman et al., eds., Bisexuality and
HIV/AIDS: A Global Perspective (Buffalo, N.Y.: Prometheus, 1991) 21. See also Gerber, supra note
144 at 30.
147 Paraphrased in Robert P. Kahn, The New Book on Bisexuality The Boston Globe (6
September 1995) 75.
148 See generally Ruth Colker, A Bisexual Jurisprudence (1993) 3 Law & Sexuality 127 at 130-34
[Colker, Bisexual Jurisprudence]; Ochs, supra note 140; Patrick S. Mulick & Lester W. Wright Jr.,
Examining the Existence of Biphobia in the Heterosexual and Homosexual Populations (2002) 2:4
Journal of Bisexuality 45.
149 See Ochs, ibid. at 222.
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lesbian community organizations,150 Pride celebrations,151 or lesbian feminist
spaces.152 As Marjorie Garber notes:
89
[M]ost bisexuals … describe their isolation or ostracization from the gay or
queer community, and their sense of apartness from the world of heterosexual
privilege in which many gays and lesbians have thought them to be seeking
refuge.153
Taken together, this experience of simultaneous exposure to homophobia and
exclusion from homosexual communities leads many to suggest that bisexuals confront
not only heterosexism but also monosexism (i.e., discrimination against those whose
sexual orientation is neither exclusively heterosexual nor exclusively homosexual).154
Monosexism may sometimes be so serious as to raise the level of persecution. A
good example can be found in the only published refugee decision where an
explicitly bisexual claimant succeeded in obtaining refugee status in Canada. In Re
B.D.K., the claimant, who identified himself as a bisexual male transvestite who
preferred men, was subject to police brutality after coming to the assistance of several
other transvestites being attacked by the Mexican police.155 When the police learned
that the claimant had a wife and child they doubled their assaults and other
brutality.156 In other words, after being brutalized for violating gender norms and
heteronormativity, the claimant was then subject to further persecution for violating
the norm of monosexuality.
If we take seriously the possibility of monosexist persecution evidenced in Re
B.D.K., as well as the experience of monosexism recounted by bisexual authors, then
we should reject the explanation that the low success rates for bisexual refugee
claimants are due to the ability of bisexuals to avoid persecution by resorting to
heterosexual privilege.
Perhaps more significantly, we should also question whether bisexual refugee
claimants can automatically access institutions and spaces that provide some degree
of protection against persecution for gays and lesbians. The exclusion from
homosexual communities reported by some bisexual authors suggests the need to
reevaluate the IRBs common practice of relying on evidence that gays and lesbians
in a particular country enjoy protection from persecution in order to conclude that
150 See Richard Morgan, Campus Byways The Advocate 904 (9 December 2003) 32.
151 See Hemmings, supra note 137 at 53-97.
152 See Colker, Bisexual Jurisprudence, supra note 148 at 129-30; Sharon Dale Stone, Bisexual
Women and the Threat to Lesbian Space: Or What if All the Lesbians Leave? (1996) 16:1 Frontiers:
A Journal of Women Studies 101 at 101.
153 Supra note 144 at 39.
154 See e.g. Ruth Colker, Hybrid: Bisexuals, Multiracials and Other Misfits Under American Law
(New York: New York University Press, 1996) at 16; Garber, ibid.; Yoshino, Bisexual Erasure,
supra note 118 at 369.
155 Supra note 82 at para. 2.
156 Ibid.
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bisexuals should seek similar protection.157 Adjudicators should, instead, be
encouraged to consider evidence that explicitly addresses conditions faced by
bisexuals.158
For this to occur, advocates of bisexual refugee claimants must make sustained
efforts to highlight the unreliability of country-condition evidence that fails to address
bisexual-specific concerns. Moreover, organizations that report on the conditions
faced by sexual minorities would need to disaggregate their analyses so that reliable
bisexual-specific evidence
include
government research bodies such as the IRB Research Directorate.159 They would
also include nongovernmental organizations such as Amnesty International, Human
Rights Watch, and the International Gay and Lesbian Human Rights Committee, all
of which prepare reports that are regularly employed as evidence in sexual-minority
refugee hearings.
is available. These organizations would
C. Bisexual Erasure (or but I didnt choose to be gay)
Unfortunately, efforts to bring greater attention to the specific challenges faced by
bisexuals, as well as to enhance bisexual visibility more generally, cannot be easily
accommodated in existing sexual-minority refugee jurisprudence in Canada. In fact,
skepticism regarding the very existence of bisexuality is built into the foundational
principle of this jurisprudencethat sexual minorities are entitled to refugee
protection because, and only because, sexual orientation is an innate and
unchangeable characteristic.
Queer theorists characterize this type of argument (i.e., sexual minorities are
deserving of protection against persecution because they cannot choose their sexual
orientation) as the immutability defense.160 According to Yoshino, there is a link
between the immutability defence and what he calls the epistemic contract of
bisexual erasure.161 This epistemic contract is the result of an interest shared by
queer and straight communities alike in stabilizing essentialist understandings of
sexual identity. Straight communities have an obvious interest in stabilizing sexual
orientation because heterosexuality is a privileged identity. Yoshino contends that
gays also have [an] … interest in guarding the stability of homosexuality, insofar as
they view that stability as the predicate for the immutability defense.162
157 See text accompanying notes 102-04.
158 In fact, the country-condition information should be further disaggregated in order to account for
other intersectional considerations such as gender, race, class, able-bodiedness, etc. See e.g. Swink,
supra note 98.
159 The IRB Research Directorate provides research on country conditions for the use of IRB
members: see Immigration and Refugee Board of Canada, Research Program Mandate, online:
Immigration and Refugee Board of Canada
160 Yoshino, Bisexual Erasure, supra note 118 at 405.
161 Ibid. at 362.
162 Ibid.
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Bisexuality threatens essentialist understandings of sexual orientation and the
immutability defence in two ways. First, many bisexuals experience their sexual
orientation as fluid, flexible, and partly chosen, thereby undermining the essentialist
account of sexual orientation. Second, bisexuality complicates the relationship
between sexual orientation and sexual behaviour. Let us examine each of these points
in greater detail.
Concerning the first point, it is, of course, important to acknowledge that some
bisexuals experience their sexual identity as innate and unchangeable: they are
bisexual, always have been bisexual, and always will be bisexual.163 As such,
bisexuality need not pose a direct challenge to essentialist accounts of sexual
orientation. Instead, bisexuality could simply be imagined as another possible innate
and unchangeable personal characteristic, in addition to heterosexuality and
homosexuality.164
The problem with such a view, however, is that is that bisexuals often experience
their sexual identities contextually, contingently, and fluidly.165 In particular, many
bisexuals experience shifts in their sexual identities over time, as their desires,
fantasies, or sexual and life partners change.166 Bisexual identities may also shift
depending on whom one happens to be conversing with, and the degree to which
ones interlocutors are familiar with the diversity of sexual-minority identities.
Moreover, many bisexuals are attracted to bisexuality precisely because of its
potential to offer a fluidity that may be difficult to locate in other sexual identities. As
queer activist Carol Queen says: If a bisexual community can form with no need to
define itself in relation to its opposite, perhaps there I will have my coming-out
place. Until then, home is not a place, but a process.167 The contingency should be
noted here. Queen is saying that if bisexual communities offer sufficient fluidity and
avoid the pitfalls of essentialism, then she may be willing to adopt a bisexual sexual
identity. This notion, whereby bisexuality is viewed as a (potentially) choice-worthy
and overtly political sexual identity, is common to many bisexuals.168
163 See e.g. Wayne Roberts, The Making of an Australian Bisexual Activist in Sharon Rose et al.,
eds., Bisexual Horizons (London: Lawrence & Wishart, 1996) 149 at 149 ([s]ince I was about eight
years old, I have been involved with other boys as well as having girlfriends).
164 See Yoshino, Bisexual Erasure, supra note 118 at 405.
165 See generally Donald Hall & Maria Pramaggiore, eds., RePresenting Bisexualities: Subjects and
Cultures of Fluid Desire (New York: New York University Press, 1996).
166 See M. King, It Could Be Either in Rose et al., supra note 163, at 105 ([h]aving lived my life
for a number of years as a heterosexual and then for an equally long period as a lesbian, I have lately
arrived at a kind of bisexual synthesis); Naomi Mezey, Dismantling the Wall: Bisexuality and the
Possibilities of Sexual Identity Classification Based on Acts (1995) 10 Berkeley Womens L.J. 98 at
117 (Stacey Young, who considered herself a lesbian, did not call herself bisexual until she had been
with the man she had fallen in love with for three and a half years).
167 Carol A. Queen, The Queer in Me in Hutchins & Kaahumanu, supra note 143, 17 at 21.
168 See e.g. Simon Scott, Politically Bi in Rose et al., supra note 163 at 236.
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One way the life experiences of (some) bisexuals challenge essentialist accounts
of sexual orientation, then, is by virtue of the fluidity and chosen nature of (some)
bisexual identities.
The second challenge bisexuality poses is to partly undermine an immutability
defence that is built upon essentialist understandings of sexual orientation. This
challenge is related to the way bisexuality complicates the link between sexual-
minority identity and sexual-minority behaviour.
In order to move effectively from the notion that sexual orientation is an innate
and unchangeable personal characteristic to the notion that sanctions against sexual-
minority behaviour amount to discrimination or persecution, there must be a strong
link between sexual identity and sexual conduct. Opponents of sexual-minority rights
frequently seek to challenge this link. Even if it is the case, their reasoning runs, that
people cannot choose their sexual orientation, that does not mean they cannot choose
whether to engage in particular sexual behaviour. Prohibitions on sexual-minority
conduct are thus not necessarily directed toward punishing individuals for matters
beyond their control. The following comments by inter alia the then Cardinal Joseph
Ratzinger are representative of such a view: The Church teaches that respect for
homosexual persons cannot lead in any way to approval of homosexual behaviour.169
The link between sexual-minority identity and sexual-minority conduct becomes
even more attenuated when bisexuals are added to the mix. Bisexuals living in
homophobic societies could, in principle, choose to engage only in cross-sex sexual
activity, thereby avoiding persecution while still leading a sexual life. In such
circumstances, even if bisexuality is an innate and immutable personal characteristic,
the immutability defence provides less of a justification for the unfairness of requiring
bisexuals to restrict their choice of sexual partners to members of the opposite sex
than in the case of gays and lesbians, for whom such a restriction arguably entails
forsaking a sexual life in its entirety.170
It is significant that out of the 160 sexual-minority refugee decisions from 2001
to 2004 that I identified,171 the only decision that turns on a split between sexual
identity and sexual conduct involved a bisexual claimant. In that case, a bisexual man
from Nigeria faced the possibility of being charged in his country with having carnal
knowledge of any person against the order of nature, an offence that carried a
maximum sentence of fourteen years.172 The IRB denied the claim on the basis that
the claimant faced not persecution on account of his sexual orientation, but
prosecution pursuant to lawful sanction. On judicial review, the Federal Court noted:
169 Joseph Card. Ratzinger & Angelo Amato, Considerations Regarding Proposals to Give Legal
Recognition to Unions Between Homosexual Persons (3 June 2003), online: Congregation for the
Doctrine of the Faith
170 See Stychin, supra note 106 at 63.
171 See text accompanying notes 50-52.
172 Aire, supra note 91 at para. 11.
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While the applicant describes this as a law against homosexuality, it is actually
a law against certain types of conduct … not tolerated between any citizens,
regardless of their sexual orientation. I find no reason to interfere with the
Board’s conclusion that a law … which prohibited certain types of sexual
behaviour was not a persecutorial law.173
While this casewhich was, in my view, wrongly decidedis something of an
outlier, it is surely not a coincidence that this reasoning appears in one of the few
published bisexual refugee decisions, whereas it is absent from the much larger
number of gay and lesbian refugee decisions.174
According to Millbank, sexual minorities who suffer mistreatment on account of
their sexual orientation are offered refugee protection because they cannot help
being gay, and cannot help being persecuted for being gay because [they] cannot help
expressing [their] gayness somehow.175 But as we have seen some bisexuals
explicitly say that they have chosen to be bisexual. Moreover, even those bisexuals
who cannot help but be bisexual canat least according to the reasoning of the
Federal Courtavoid expressing their gayness and thereby avoid persecution: they
can simply refrain from engaging in prohibited same-sex sexual behaviour.
D. Queering Canadian Refugee Law (or beyond sheep and goats)
We have seen in this article that the view of bisexuality as a myth, the invisibility
of bisexual subject positions, and the contention that bisexuals enjoy heterosexual
privilege all produce serious challenges for bisexuals in general, and for bisexual
refugee claimants in particular. While bisexual communities have worked to increase
awareness of these challenges, their efforts are hampered by an epistemic contract of
bisexual erasure, a contract built upon essentialist understandings of sexual
orientation and upon the immutability defense, both of which are incorporated into
contemporary jurisprudence on sexual-minority refugees.
What then are the alternatives? How can we enhance the visibility of alternative
sexual identities? How can we challenge the epistemic contract of bisexual erasure
and insist that, as Alfred Kinsey famously put it, [t]he world is not to be divided into
sheep and goats?176 How can we develop a sexual-minority refugee jurisprudence
that can better accommodate those of us who experience our sexual identities as fluid
and flexibleindeed, those of us who find the fluidity of sexuality to be its most
appealing and exciting feature?177
173 Ibid. at paras. 12, 16 [emphasis added].
174 See Catherine Dauvergne, Humanitarianism, Identity and Nation: Migration Laws in Canada
and Australia (Vancouver: UBC Press, 2005) at 116.
175 Visibility, supra note 44 at 93 [references omitted].
176 Kinsey et al., Human Male, supra note 4 at 639.
177 See e.g. Butler, Undoing Gender, supra note 5 at 80.
refugee
claimantsespecially
queer-rights
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I believe that there is potential for locating alternatives in three distinct sites in
Canadian refugee jurisprudence: persecution on account of political opinion and
religion, gender, and voluntary associations.
Persecution on Account of Political Opinion & Religion
First, more use could be made of the refugee-law categories of persecution on
account of political opinion and persecution on account of religion. Recall that
refugee claimants must demonstrate a connection between the harm that they fear in
their home country and one of the listed grounds of persecution, namely race,
religion, nationality, membership in a particular social group, or political opinion.178
While most sexual-minority refugee claimants attempt to fit their claims into the
residual category of membership in a particular social group, as we have seen, some
sexual-minority
activistshave
successfully asserted that they fear persecution on account of their political opinion.179
In Ward, the Supreme Court of Canada set out a broad definition of political
opinion for the purposes of refugee law. Political opinion covers any opinion on any
matter in which the machinery of state, government, and policy may be engaged.180
Ward also held that a political opinion could be one that is either expressed by refugee
claimants themselves or imputed to them by the agents of persecution.181 Moreover,
Ward confirmed that it is not necessary that the agents of political persecution be state
actors.182 Taken together, and considering the prominence of assertions that the
in society,183 violence and
heterosexual family
discrimination targeting those who challenge heteronormativity can reasonably be
characterized as persecution on account of political opinion. This category is thus not
restricted to sexual-minority-rights activists, and should be considered with greater
frequency both by advocates of sexual-minority refugee claimants and by IRB
members.
A similar argument can be made concerning the category of persecution on
account of religion. Many religious authorities view heterosexuality as the only
natural or religiously sanctioned form of human sexuality.184 Where religious
the fundamental unit
is
178 See IRPA, supra note 17, s. 96.
179 See text accompanying note 19.
180 Supra note 37 at 693.
181 See ibid. at 747.
182 See ibid. at 716-17. See also Klinko v. Canada (Minister of Citizenship and Immigration), [2000]
3 F.C. 327 at paras. 25-27, 184 D.L.R. (4th) 14.
183 See e.g. Egan, supra note 15 at para. 28, La Forest J.; M. v. H., supra note 121 at para. 181,
Gonthier J., dissenting. For a sophisticatedthough to my mind highly problematicargument that
heterosexuality ought to remain a central social institution, see Margaret Somerville, The Ethical
Imagination (Toronto: House of Anansi Press, 2006) at 100-03.
184 See e.g. Geoffrey Chapman, Catechism of the Catholic Church, rev. ed. (Bath, U.K.: Bath Press,
1999) at para. 2357 ([s]acred Scripture … presents homosexual acts as acts of grave depravity,
Tradition has always declared that homosexual acts are intrinsically disordered. They are contrary to
the natural law [references omitted]).
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authorities, with or without the acquiescence of the State, attempt to compel
adherence to heterosexuality, targeted violence and other systemic human-rights
violations directed toward sexual minorities can easily result.185 While it is possible to
characterize such human-rights violations as persecution on account of sexual
orientation, it is equally feasible to categorize them as persecution on account of
religion.186
Increased resort to the categories of persecution on account of political opinion
and persecution on account of religion would be helpful in the sexual-minority
refugee context because these categories focus attention away from scrutinizing the
precise sexual identity of claimants. Instead, they highlight the way that political and
religious authorities engage in systemic human-rights violations in order to enforce
heterosexuality. Such an approach can accommodate diverse sexual minorities
because, rather than being required to prove that they are in fact members of specific
unpopular groups (i.e., gays, lesbians, et cetera), claimants must demonstrate that they
face persecution on account of heterosexuality.
Persecution on Account of Gender
The second locus that offers helpful alternatives to the essentialism of
contemporary Canadian refugee law is the possibility of framing sexual-minority
refugee claims in terms of gender-based persecution. Ward confirmed that those
persecuted on account of gender are eligible for refugee protection.187 Partly in
response to this decision, the IRB developed guidelines for cases involving gender-
based persecution.188 These guidelines have been widely influential in increasing the
sensitivity of refugee-determination systems around the world to gender-related
issues.189
185 See e.g. Re C.X.S., [1995] C.R.D.D. No. 134 (QL) ([t]he intent of the sodomy law in Iran is to
proscribe sexual activity that is considered a crime against God. With regard to the governments own
pronouncements and statements about homosexuality, it is clear that the authorities view
homosexuality as one of the worst possible sins against God. … [T]he ultimate penalty is death); Re
P.L.Z., [2000] C.R.D.D. No. 97 at para. 12 (QL) ([t]he legal system in Algeria is based on the
precepts of Islamic religious Sharia law. Under Shari’a law, homosexuality is considered to be an
absolute and condemnable sin).
186 For a compelling argument that there are many underutilized possibilities for working with
freedom of religion in the context of sexual-minority rights at the international level, see Jeffrey A.
Redding, Human Rights and Homo-secutuals: The International Politics of Sexuality, Religion, and
Law (2006) 4 NW.U.J. Intl H.R. 436.
187 Supra note 37 at 739.
188 See Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines Issued
by the Chairperson Pursuant to Section 65(3) of the Immigration Act (Ottawa: Immigration and
Refugee Board, 1996).
189 Canadas guidelines for gender-based claims preceded those of other countries. See e.g. Karen
Musalo, Revisiting Social Group and Nexus in Gender Asylum Claims: A Unifying Rationale for
Evolving Jurisprudence (2003) 52 DePaul L. Rev. 777 at 779-80. See also Nicole LaViolette,
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While the guidelines do not explicitly mention sexual minorities, gender-based
persecution is relevant to sexual-minority refugee claims in at least two distinct ways.
Firstly, sexual minorities may confront persecution on account of both gender and
sexual identity simultaneously. For example, in addition to persecution on account of
sexual orientation, lesbians frequently face amplified gender-persecution ranging
from rape, to family-based violence, to forced marriages.190 Similarly, lesbians may be
hindered by gender-based discrimination (for example, in the employment, housing or
social-services sectors) when they attempt to flee persecution on account of their
sexual orientation.191
Secondly, it is possible to understand persecution against sexual minorities as
persecution aimed at non-compliance with gender norms.192 As Nicole LaViolette
notes:
Social, political, and legal disapproval of homosexuality is more often a
reaction to the noncompliance to gender and social roles than a simple
expression of contempt for the sexual practices of homosexuals. Generally,
gender roles are based on a heterosexual orientation. Non-conformance with
gender norms by gay men, lesbians, and transgendered persons implies a
refusal to behave in ways dictated by their biological sex and social
classification.193
A practical example of this phenomenon can be found in a decision involving a gay
man from Mexico.194 The claimant in question began experiencing gender-based
violence as a child when classmates in primary school had insulted him and even
beaten him … to make a man of him.195 Later in his life, when he reported receiving
homophobic death threats, the police refused to take his case seriously, telling him,
Be a man.196 As such language indicates, homosexuality may be read as defective
masculinity. Or, more generally, genderas it is traditionally understoodis partly
constituted by heterosexuality. To be a woman or a man means to embody a particular
role in a heterosexual dynamic.197
Gender-Related Refugee Claims: Expanding the Scope of the Canadian Guidelines (2007) 19:2 Intl
J. Refugee L. 169 at 178 [LaViolette, Gender].
190 See Millbank, Visibility, supra note 44 at 77; LaViolette, Gender, ibid.
191 See LaViolette, Gender, ibid. at 188.
192 See generally Butler, Gender Trouble, supra note 3; Sylvia Law, Homosexuality and the Social
Meaning of Gender (1988) Wis. L. Rev. 187; James Willet, Conceptualizing Private Violence
Against Sexual Minorities as Gendered Violence (1997) 60 Alb. L. Rev. 989.
193 LaViolette, Gender, supra note 189 at 185-86 [references omitted].
194 Garibay Aguilar v. Canada (Minister Citizenship and Immigration), [2004] R.P.D.D. No. 79
195 Ibid. at para. 3 [emphasis added].
196 Ibid. at para. 13.
197 Of course, as queer theorists persuasively demonstrate, the relation between gender and sex is
decidedly more complex than such traditional understandings would have it. See generally Butler,
Undoing Gender, supra note 5.
(QL).
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Framing sexual-minority claims in terms of gender persecution, rather than
persecution against particular unpopular minorities, would be helpful in several
respects. First, it would encourage IRB members to consider how persecution on
account of gender and sexual orientation may intersect to the disadvantage of
particular refugee claimants. Second, it would draw decision makers attention to the
mutually constitutive relationship between enforced heterosexuality and traditional
gender identities. Such an approach is able to accommodate sexual identities beyond
just gays and lesbians because it addresses persecution against all those who defy
traditional gender roles, regardless of their particular sexual identities. Finally, in the
specific context of bisexual refugee claimants, a gendered approach would encourage
IRB members to consider how traditional gender roles may be enforced not only
through heterosexist persecution, but also monosexist persecution. Bisexuality, after
all, poses a simultaneous threat to the notion that individuals are naturally
heterosexual and to the necessary connection between gender and sexuality.198
For the IRB to tackle these issues effectively, it would be helpful if the guidelines
on gender-based persecution were amended to refer specifically to the relevance of
gender in the context of sexual-minority refugee claimants.199
Persecution on account of voluntary associations
The third locus in Canadian refugee law in which alternatives to the current IRB
approach can be developed is the basis upon which sexual minorities qualify as a
particular social group for the purposes of the refugee definition. As we have seen,
the Supreme Court of Canada in Ward set out three possible bases for qualification as
a particular social group for the purposes of Canadian refugee law:
(1) groups defined by an innate or unchangeable characteristic;
(2) groups whose members voluntarily associate for reasons so fundamental to
their human dignity that they should not be forced to forsake the association;
and
(3) groups associated by a former voluntary status, unalterable due to its
historical permanence.200
While the Court went on to say that sexual orientation falls within the first
category, the second category is in my view more appropriate.201 Sexual minorities
ought to be entitled to refugee protection, not on the grounds that sexual orientation is
an innate or unchangeable characteristic, but rather on the grounds that requiring
198 See ibid. at 80.
199 For a highly persuasive argument in favour of updating the IRBs gender guidelines to explicitly
include sexual-minority refugee claims, and for recommendations as to the content of those
amendments, see LaViolette, Gender, supra note 189.
200 Ward, supra note 37 at 739 [emphasis added].
201 I am, of course, not alone in holding this view. See e.g. LaViolette, Immutable, supra note 20
at 41; Kristen L. Walker, Sexuality and Refugee Status in Australia (2000) 12 Intl J. Refugee L. 175
at 209.
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sexual minorities to forsake their associations with one another is an affront to their
human dignity. Shifting the basis for sexual-minority refugee protection in this way
finds support in Canadian equality-rights jurisprudence,202 as well as in refugee case
law from several countries, including Australia,203 New Zealand,204 and the United
States.205
I want to be clear here. To say that persecuted sexual minorities are entitled to
refugee protection on the grounds that their association is fundamental to their human
dignity is not to concede that one necessarily chooses ones sexual orientation. An
individuals associations might be explained by any number of factors, ranging from
physiological factors, to psychological considerations, to political commitments, or
simply to quirks of character or accidents of personal history. The relevant concern is
thus not the motivations behind sexual-minority associations, but rather the principle
that forcing sexual minorities to disassociate in order to avoid persecution would
violate their fundamental human dignity.206
Moving away from the immutability defence toward the fundamental human
dignity approach carries a number of advantages. Firstly, such a move would
contribute to shifting the terms of the debate about sexual-minority rights away from
the issue of chosen conduct versus innate and immutable personal characteristics,
toward the relation between sexuality and fundamental human dignity.207 I
acknowledge that a number of positions can, in good faith, be taken on how best to
202 Much of this support is to be found in the human-dignity approach to sexual-minority equality
rights articulated by Justice LHeureux-Dub. See e.g. Egan, supra note 15 at paras. 88-89; Vriend,
supra note 15 at para. 186; Trinity Western University v. British Columbia College of Teachers, 2001
SCC 31, [2001] 1 S.C.R. 772 at para. 69, 199 D.L.R. (4th) 1. For an excellent discussion of
fundamental human dignity as a foundation for same-sex equality norms in Canadian constitutional
jurisprudence, see Leckey, supra note 122.
203 See especially Applicant A v. Minister for Immigration and Ethnic Affairs, [1997] HCA 4, 142
A.L.R. 331; S395/2002 v. Minister for Immigration and Multicultural Affairs, [2003] HCA 71, [2003]
78 A.L.J.R. 180.
204 See especially Refugee Appeal No.1312/93 (30 August 1995), Refugee Status Appeals Authority
Decision, online: Refugee Status Appeals Authority
Decision, online: Refugee Status Appeals Authority
205 See especially Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986); Hernandez-Montiel v. INS,
225 F.3d 1084 (9th Cir. 2000).
206 See Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593 at paras.
83-89, 128 D.L.R. (4th) 213, La Forest J., dissenting (noting the key to the second Ward category of
particular social groups is not the voluntary nature of the association in question, but rather whether
forced disassociation would violate fundamental human dignity). See also Audrey Macklin, Canada
(Attorney-General) v. Ward: A Review Essay, Case Comment, (1994) 6 Intl J. Refugee L. 362 at
375.
207 See generally Leckey, supra note 122.
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understand this relation.208 However, the legal and political conversations that would
emerge from a consideration of this relation would surely be more constructive than
the current we cant help ityes you can shouting match. In particular, such
conversations would help to refine the right to sexual self-determination that appears
to be slowly emerging in both constitutional and international law.209
Secondly, asking the IRB to consider whether claimants are persecuted because
of their associations would minimize the degree to which the IRB must scrutinize
claimants sexual identities. As we have seen, queer theory takes issue with the
essentialist notion that individuals have true or authentic sexual orientations. As a
result, for queer theorists, it is problematic that IRB Members attempt to assess
whether the claimants before them are really gay, lesbian, or some other asserted
innate and immutable sexual identity. Admittedly, this problem is to some degree built
into membership in a social-group category, because claimants must demonstrate that
they are, in fact, members of the particular social group in question. However, the
manner in which the social group is framed can significantly affect the level of
scrutiny to which claims of membership in the social group are subject.
The innate and immutable approach frames the relevant social groups very
narrowly: gays, lesbians, and, at least in principle, other groups with innate and
immutable sexual-minority identities. IRB Members must then somehow work out
whether the individuals before them actually fall within those groups. As we have
seen, this task leads IRB Members to rely heavily on stereotypes about how
individual members of such groups act and live their lives. Such stereotypes work to
the disadvantage of particular subsets of these groups. Those whose sexual identities
are fluid, flexible, contingent, and partly chosen have particular trouble fitting into
such narrowly framed groups.
The fundamental-dignity approach, however, casts the relevant social group
much more broadly: those whose associations challenge heteronormativity. Under
this approach, IRB members, instead of asking whether a person is truly a member of
a particular sexual minority, simply need to determine whether a person is likely to
associateor to be perceived as associatingwith others in a manner that challenges
the inevitability or desirability of exclusive heterosexuality. As a result, rather than
mandating the suspect exercise of assessing refugee claimants true or authentic
sexual identities, the fundamental-dignity approach directs IRB members to inquire
into alleged human-rights violations that are aimed at compelling claimants to forsake
associations in the name of heterosexuality.
208 For an example of what I would term a good faiththough to my mind highly problematic
conservative view of the relation between sexuality and human dignity, see Somerville, supra note
183 at 100-03.
209 See e.g. Brenda Cossman, Gender Performance, Sexual Subjects and International Law (2002)
15 Can. J.L. & Jur. 281 at 294; Berta E. Hernndez-Truyol, Querying Lawrence (2004) 65 Ohio St.
L.J. 1151 at 1179; Millbank, Visibility, supra note 44 at 110; Kristen L. Walker, Capitalism, Gay
Identity and International Human Rights Law (2000) 9 Australasian Gay & Lesbian L.J. 58 at 70-71.
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Taken together, increased resort to the categories of persecution on account of
political opinion and religion and persecution on account of gender, as well as the
shift toward the fundamental-dignity approach to sexual-minority refugee law, would
allow Canadian refugee law to accommodate sexual minorities beyond gays and
lesbians better. None of these approaches reinforces either the immutability defence
or its essentialist underpinnings. That is to say, none presumes that a naturally
delimited set of unpopular sexual minorities must be protected from persecution
because individuals are not to blame for their unchosen and unchangeable sexual
identities. Instead, these approaches consider eligible for protection all those who are
persecuted because they challenge heteronormativity andor traditional gender roles,
including those whose sexual identities are fluid, flexible, contingent, and partly
voluntary.
By building a sexual-minority refugee jurisprudence that can accommodate the
complexity and fluidity of (some) sexual-minority identities and behaviours, we can
contribute to a central project of queer theory: directing critical gaze away from the
question of what makes some people gay toward the question of what makes some
people straight.210 If sexual identity is complex, fluid, and at least partly related to
voluntary association, then the issue of why it is that many people understand their
sexual identity in innately and unchangeably heterosexual terms becomes a puzzle to
be explored.211 In attempting to solve this puzzle, we must confront the question of
whether heterosexuality is both enforced and constituted by the mistreatment of those
who challenge heteronormativity. In other words, a more flexible approach to sexual-
minority refugee jurisprudence encourages us to move beyond thinking of
homophobic violence as mere persecutory reactions to an unpopular minority.
Instead, it suggests that these practices may be necessary for creating the
(purportedly) heterosexual and gendered majority, necessary in turn for the
emergence of compulsorily heterosexual212 and compulsorily gendered subjects.213
It is for this reason that a sexual-minority refugee jurisprudence attentive to
political and religious persecution, to gender-based persecution, and to fundamental
human dignity is a queer jurisprudence. It is a jurisprudence that does not merely seek
to carve out new discrete spaces on a continuum of legally protected sexual identities,
with homosexuality and heterosexuality as the poles of the continuum. Rather, it
210 This project can occur in many legal sites simultaneously. For an argument that there are
interesting opportunities to engage in such a project in the family law context, see Richard Collier,
Heterosexual(izing) Family Law in Carl Stychin & Didi Herman, eds., Law and Sexuality: The
Global Arena (Minneapolis: University of Minnesota Press, 2001) 164.
211 See e.g. Didi Herman, Are We Family?: Lesbian Rights and Women’s Liberation (1990) 28
Osgoode Hall L.J. 789 at 813.
212 See e.g. Adrienne Rich, Compulsory Heterosexuality in Blood, Bread, and Poetry (New York:
213 See e.g. Phyllis Burke, Gender Shock: Exploding the Myths of Male and Female (New York:
W.W. Norton, 1994).
Anchor Books, 1996).
S. REHAAG BISEXUAL REFUGEE CLAIMS IN CANADA
2008]
seeks to explode the continuum by inquiring into how the existence of its poles might
be contingent upon heterosexist and monosexist assumptions.
101
sexuality
in all
its diversity,
Conclusion
Published bisexual refugee decisions frequently employ the term confused to
describe claimants testimony regarding their sexual identities. In this article,
however, I have suggested that it is Canadian refugee law that is confused in its
approach to sexual-minority refugee claims.
My major contention is that a primary source of this confusion is the essentialist
account of sexual orientation. Such an account, which views sexual orientation as an
innate and immutable personal characteristic, is currently at the heart of Canadian
sexual-minority refugee law. When decision makers confront the complexity of
human
they cannot accommodate many
nonheteronormative sexual identities within essentialist understandings of sexual
orientation. The result is that recounted life experiences of sexual-minority refugee
claimants that depart from judicially endorsed understandings of sexual orientation
are subject to heightened scrutiny. Bisexuals are an example of a particular subset of
sexual minorities that face such heightened scrutiny, in large part because bisexuals
frequently present their sexual identities not as innate and immutable, but rather as
flexible, fluid, and contingent. It is thus not surprising that bisexual refugee claimants
experience dramatically lower grant rates relative to both sexual-minority claimants
and traditional refugee claimants. As long as persecuted sexual minorities are entitled
to refugee protection only because sexual orientation is considered an innate and
unchangeable characteristic, particular sexual minoritiesincluding bisexuals
whose identities cannot be understood in these terms will encounter difficulties
accessing their rights.
Fortunately, Canadian refugee law provides a number of loci in which to develop
a more flexible approach to sexual-minority refugee law. In particular, sexual-
minority refugee claims should increasingly be framed as involving persecution on
account of political opinion, religion, and gender. Moreover, it is time to rethink the
basis on which sexual minorities are included in the residual category of persecution
on account of membership in a particular social group. The reason sexual minorities
ought to qualify as a particular social group is because sexual minorities associate for
reasons fundamental to their human dignity, not because sexual orientation is an
innate and unchangeable personal characteristic.
A new sexual-minority jurisprudence built upon these foundations would be a
queer jurisprudence. Rather than merely attempting to carve out spaces in which
particular sexual minorities can access their rights, this jurisprudence would highlight
the ways in which enforced heterosexuality may be necessary to constitute
contemporary gender and sexual identities.
One of the central advantages of building a queer refugee jurisprudence in this
manner is that it avoids putting refugee adjudicators in the impossible position of
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102
attempting to determine definitively the true or authentic sexual orientation of
those who appear before them. Instead of scrutinizing the sexual identities of queer
refugee claimants, the approach I recommend places heteronormative persecution
the affronts to human dignity built into the enforcement of traditional gender roles
and into compulsory heterosexualityfront and centre in sexual-minority refugee
adjudication.
Of course, making conclusive findings about whether a person is likely to suffer
persecution on such grounds is, like all factual determinations in the refugee field,
challenging.214 But at least such an approach does not subject sexual-minority refugee
claimants to the indignity of having their sexual identity measured against a standard
that flows from the very same compulsory heterosexuality that led them to Canada in
the first place.
214 See e.g. Elizabeth Adjin-Tettey, Reconsidering the Criteria for Assessing Well-Founded Fear in
Refugee Law (1997) 25 Man. L.J. 127; Robert Barsky, Constructing a Productive Other: Discourse
Theory and the Convention Refugee Hearing (Philadelphia: John Benjamins, 1994); Dauvergne, supra
note 174 at 97-117; France Houle, Le fonctionnement du rgime de preuve libre dans un systme
non-expert: le traitement symptomatique des preuves par la Section de la protection des rfugis
(2004) 38 R.J.T. 263; Audrey Macklin, Truth and Consequences: Credibility Determination in the
Refugee Context in Jordan et al., eds., Realities of Refugee Determination on the Eve of a New
Millennium (Haarlem, Netherlands: International Association of Refugee Law Judges, 1999) 134.
