Research Handbook on Gender, Sexuality and the Law
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Research Handbook on Gender, Sexuality and the Law

Edited by Chris Ashford and Alexander Maine

This innovative and thought-provoking Research Handbook explores not only current debates in the area of gender, sexuality and the law but also points the way for future socio-legal research and scholarship. It presents wide-ranging insights and debates from across the globe, including Africa, Asia, Eastern Europe and Australia, with contributions from leading scholars and activists alongside exciting emergent voices.
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Chapter 12: Normative understandings: sexual identity, stereotypes, and asylum seeking

Alex Powell

Abstract

In the case of HJ and HT v Secretary of State for the Home Department, the Supreme Court of the United Kingdom ruled that the previous position which held that asylum claims would not be granted in situations where discretion or concealment of an individual’s LGBT identity could remove ‘well-founded fear of persecution’ was illegal. In passing this judgment, the court has refocused the attention of decision makers, from proving that there is a ‘well-founded fear of persecution’ to proving that the individual is a member of the ‘particular social group’ under which they make their claim. Since 1999, the UK has upheld the possibility of LGBT individuals making successful claims under the ‘Particular Social Group’ of the Refugee Convention (1951). However, this raises as many questions as it answers – most pressingly, who represents a member of particular social groups, such as ‘gay’ and ‘lesbian’. Hathaway and Pobjoy have argued that, in the HJ and HT decision, the ‘all embracing’ decision of Lord Roger expanded the scope of the convention too far, distorting the common relationship between refugee law and international human rights practice. This article argues that, on the contrary, the judges in HJ and HT did not go far enough. Indeed, in their haste to find a decision which avoided the deeply problematic ‘discretion’ criterion, it is argued that the judges reified problematic and limiting ideas of what it means to be a gay man. This is primarily because their understanding of terms such as gay is rooted within normative, western stereotypes. This article argues for a ‘queer’ understanding of how LGBT people fit within the ‘particular social group’ framework, demonstrating that the present situation undermines the aims of the convention.

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