This article originally appeared in The Conversation.
After years of trying to improve its approach to lesbian, gay, and bisexual asylum seekers, Britain’s Home Office has once again gotten it very wrong.
Aderonke Apata, a high-profile LGBT rights campaigner from Nigeria, applied for asylum in the United Kingdom and was refused. She could face the death penalty if she is deported.
As part of her evidence, she submitted a petition containing nearly 30,000 signatures from members of the British public in support of her claim. Explicit video footage and photographs of her with her girlfriend were also submitted.
Barrister Andrew Bird, representing Home Secretary Theresa May, dismissed this evidence, asserting that as she had previously had a heterosexual relationship and had children, Apata could not be a lesbian. He put it this way at the court hearing: “You can’t be heterosexual one day and a lesbian the next day, just as you can’t change your race.”
Of course, this thinking no longer represents a consensus view of sexuality; the idea that homosexual and heterosexual are definitive, mutually exclusive categories has been somewhat superseded by more nuanced views that recognize sexuality as complex and fluid.
But Apata’s case hasn’t just revealed a barrister’s poor understanding of how sexuality works—it has shone an unedifying light on a system that still can’t figure out how to handle gay, lesbian, and bisexual asylum seekers.
It’s not as though the United Kingdom has failed to stand up for gay rights abroad. Same-sex sexual relationships are illegal in 76 countries, but much of the rest of the world is finally taking a stand against such laws, and the United Kingdom has been an enthusiastic participant. Among other things, Prime Minister David Cameron has called for aid to some countries (Uganda, for instance) to be withheld because of their treatment of LGBT people.
But despite having become something of a leader in LGBT rights on the world stage, the United Kingdom has long performed disappointingly when it comes to actually helping LGBT people who are persecuted elsewhere and seek international protection.
In the United Kingdom, seeking asylum on the basis of your sexuality is a complex legal process. Because sexuality is not explicitly recognized within the 1951 Refugee Convention (under article 1a) as part of the definition of a refugee, many cases come down to complex and lengthy legal battles, like Apata’s case, which has taken 10 years.
It increasingly falls to individuals to prove their sexuality and convince the Home Office and immigration judges that they are indeed gay, and the hoops they jump through are often humiliating and bizarre.
Within the asylum process, sexuality is still largely defined by a conformity to stereotypes and expectations about what gay sex involves. In my research with lesbian asylum seekers, women who had sought asylum told me about being asked not just whether they had read Oscar Wilde and what TV shows they liked, but whether they used sex toys and “how they had sex.”
In 2014, a document was leaked to the press that outlined a series of questions asked by the Home Office of a bisexual asylum seeker in a detention center. These included: “What is it that attracts you to a man’s backside?” “What is it about the way men walk that turns you on?” And “Do you put your penis into [your boyfriend’s] backside?”
Worse still, the system’s increasing focus on proof of homosexual activity has seen growing numbers of LGBT asylum seekers submitting recordings of themselves having sex for legal scrutiny to try and validate their claims, as Apata did.
After loud criticism of these inappropriate standards of proof, in 2014 Home Secretary Theresa May commissioned the Chief Inspectorate of Immigration and Borders to investigate how sexuality asylum cases are being handled.
The review concluded that while progress had been made, the Home Office’s guidance was still being implemented inconsistently and that Home Office employees needed further training on how to assess sexuality claims fairly and sensitively.
That there have been sincere promises to improve the situation make it all the more shocking that the Home Office continued to dismiss Apata’s claim on the basis that its staff simply do not believe she is a lesbian, despite the explicit materials she submitted as evidence. This raises a question: What do you need to do in order for the Home Office to believe that you are lesbian, gay, or bisexual?
Apata’s case is an ugly reminder that the United Kingdom’s asylum process has never caught up with the way sexuality is now understood. Until it does, people in desperate situations will continue to be treated appallingly.