Biphobia in the asylum claims based on the sexual orientation or gender identity: Between the stereotype and the prejudice

By Tereza Volakaki

For every claim of international protection based on sexual orientation or gender identity (SOGI), it is required from the legislation and therefore the asylum service the proof of the applicant’s claim for the international protection. In other words, every asylum seekers must prove his/her fear of persecution, since in his/her country of origin the people of the lgbtqia community is persecuted.  

However, given that the sexuality and the gender identity are intertwined with the individual’s personality, controlling the SOGI of the applicants could be is quite hard and often violating the right of the human dignity. It seems much harder to prove the fear of persecution of someone who identifies himself bisexual. Nevertheless, a bisexual person, also having homosexual sexual expression, experiences the same fear of persecution, in countries where homosexual acts are prosecuted. Practically, bisexual people are rarely seen as such in relation to asylum applications, as they are recorded either as homosexuals or as heterosexuals.

Research in Britain has shown that a request based on bisexuality is very often rejected. Therefore, individuals do not disclose their (bisexual) identities. After all, stereotypes, biphobia, prejudices, lack of visibility and myths about sexuality lead to mistrust of the authorities and further rejection of their applications.[1] It is precisely this lack of visibility that reflects the phenomenon that bisexuality in a society in which it is perceived through dipoles is not easily comprehensible.[2] In many analyses, the homosexual aspect of bisexuality reflects an option,[3] since making this «right» choice, the person can easily avoid persecution and not to risk in his country of origin.[4]

That is, individuals’ homosexual choices seem like «self-harm» based on the claims of asylum services. However, the COI poses a key barrier to asylum applications for bisexual applicants.[5] Given that homosexuality is legally criminalized, bisexuality is also indirectly prosecuted, which, however, cannot be proven.

Rehaag, in his research, explains that bisexual asylum seekers are much less likely to succeed, since from the asylum services, the ambiguous nature of bisexuality signals its lack.[6] The above research presents some data on bisexual asylum applications in Canada, the USA and Australia. In particular, their absence is largely detected in the case law of the host countries, and on the other hand, when detected, they have very low success rates.[7] Initially, the problematic-phobic attitude of the jurisprudence towards bisexuality is ascertained, with the case of a Chinese bisexual asylum seeker in Australia being typical. The applicant claimed that he had a tendency towards homosexuality, and having this life he found himself in danger. The Court then linked bisexuality to a political choice between democracy and totalitarianism, and between Christianity and Αtheism. With the above they wanted to show that the applicant is unreliable and that the claim of bisexuality is vague, as it is not possible at one time to be on one side and the other on the other.[8]

It is interesting and at the same time contradictory that according to research on sexual behavior, more subjects fall into the spectrum between homosexuality and bisexuality,[9] but the asylum services do not recognize it as a real state of danger that needs protection. Biphobia is finally what imposes the choice on individuals and ultimately shames them for their very existence. With today’s data, the need for action is imperative and highlights the demand for recognition and acceptance of bisexuality. After all, any subject with multiple identities is often faced with the dilemma of choosing and ultimately suppressing his or her dual identity. This acceptance must start from the premises of the local community itself and be disseminated to the services, the state and the legislation.

[1] Neva Wagner, ‘B Is for Bisexual: The Forgotten Letter in U.K. Sexual Orientation Asylum Reform’ (2016) 26 Transnat’l L & Contemp Probs 205, pg. 207.

[2] Miguel Obradors-Campos (2011) Deconstructing Biphobia, Journal of Bisexuality, 11:2-3, 207-226, pg. 214.

[3] Milaine Alarie & Stéphanie Gaudet (2013) “I Don’t Know If She Is Bisexual or If She Just Wants to Get Attention”: Analyzing the Various Mechanisms Through Which Emerging Adults Invisibilize Bisexuality, Journal of Bisexuality, 13:2, 191-214, DOI: 10.1080/15299716.2013.780004.

[4] Wagner, pg. 216.

[5] COI: Country of Origin Information, in relation to the social situation or the laws of the applicant countries of origin.

[6] Sean Rehaag, “Bisexuals Need Not Apply: A Comparative Appraisal of Refugee Law and Policy in Canada, the United States, and Australia” 2987 (2010), pg. 420.

[7] It is described that in the USA the percentage of applications of applicants based on SOGI is less than 1%, Rehaag, pg. 423, Marcus, N. C. (2018). The Global Problem of Bisexual Erasure in Litigation and Jurisprudence. Journal of Bisexuality, 18(1), 67-85, pg. 13.

[8] RRT Case No. N95/07313, [1997] RRTA 2438 (27 June 1997).

[9] Alfred Kinsey’s research on the spectrum of human sexuality.

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