The Recognition of Queer Asylum Claims in Germany
To live a life in fear of violence, incarceration, torture, excommunication and isolation is a reality for many lesbian, gay, trans*, bi, intersex and non-binary persons worldwide. Homosexuality is criminalized in 77 countries out of which seven apply the death penalty. According to the UNHCR, the number of persons who flee their country due to their sexual orientation and/or gender identity and who qualify for protection as “members of a particular social group” under the 1951 Refugee Convention has increased.
In line with a European Union Directive from 2005 and the recast Directive 2011/95/EU, Germany recognizes human rights violations based on sexual orientation and gender identity as grounds for seeking asylum. Out of the ca. 1.6 million refugees that have been registered since the so-called refugee crisis in 2016, the German Lesbian and Gay Association estimates that about 60 000 identify as LGBTQI+. Exact numbers, however, cannot be established due to the lack of official statistics on LGBTQI asylum claims. Based on the data of my EU-funded research project “Queer Muslim Asylum in Germany,” refugee protection is most likely conferred to those LGBTQI+ claimants who present their sexual asylum story through an intelligible narrative that allows for a reading of pain and suffering through a Western lens of homosexuality, and that is supported by evidence such as police and NGO reports.
Telling a convincing story
“The sexual asylum story is everything,” says Ibrahim[1], an LGBTQI+ activist from Lebanon who gained a subsidiary protection status in Germany in 2015. “Your asylum story needs to be well-prepared and tailored to the institutional expectations around sexuality and gender identity. The decision-maker has to believe that you are gay, so you have to tell them your story that they can understand,” Ibrahim says. Aziz, a trans refugee from Tunisia confirms such a concern. Aziz fled Tunisia due to imprisonment and physical torture, which included a government-mandated forced anal test to determine whether they had committed sodomy. Aziz ascribes the ‘success’ of their case to them being outspoken about their sexuality and gender identity, and to their in-depth research on the bureaucratic expectations of the asylum interview. However, not all LGBTQI+ asylum claimants are prepared to speak about their sexuality and/or gender identity openly, and many find it difficult to provide evidence of instances of persecution and torture.
Difficulties in proving sexual orientation
This applies particularly to lesbians racialized as Black. NGO estimates suggest that in Southern Germany, about 95 percent of asylum cases lodged by lesbian-identifying women from mostly Sub-Sahara African countries get rejected after the first interview. One of the most pertinent challenges that often leads to a rejection, is, that the threats and violence women endure because of their sexual orientation and/or gender identity cannot be easily evidenced.
As the case of a lesbian from Uganda confirms, her asylum claim got rejected in 2012 by the Federal Office for Migration and Refugees because she was scared to openly talk about her sexuality in the presence of the Ugandan translator, who expressed her disapproval of her sexual orientation. Moreover, she felt that her marriage and motherhood cast a doubt on the authenticity of her homosexuality claim. However, it is particularly striking that the significant violence she endured on the part of her community, family and husband, which culminated with her being locked up in a goat shed for over two months and the pronouncement of the death penalty by the local Shariat council, did not strengthen her asylum claim. Instead, it was completely sidelined.
The case of Livia, a lesbian from Uganda, is similar. Livia discovered her homosexuality in high school. Once her family found out, Livia was forced into a marriage with an abusive man with whom she has one son. A secret relationship with a woman led to a divorce. Two years later, Livia entered a second marriage to shield herself from persecution and ostracization in a context of growing homophobia in Uganda. After the second husband, with whom she has two children, found out, he called the police. Consequently, Livia was detained for three days and subjected to “corrective rape.” Livia took the opportunity of a conference in Germany, organized by her local church, to get a tourist visa and flee Uganda. In Germany, Livia’s asylum claim got rejected because her “narratives of police detention, forced marriage, and corrective rape do not seem credible as they lack concreteness, clarity, and “wealth of detail,” the asylum decision reads.
Towards a more inclusive asylum system
These cases are not exceptions. A psychologist supporting lesbians with their asylum claims in Bavaria is troubled by how massive forms of sexual and physical violence – ranging from domestic rape, over gang rape to the disfigurement of their bodies – are easily brushed aside by shallow stereotype imaginations of the lesbian biography in asylum decisions, such as: ‘If she was married to a man and she had children, then she can’t be a lesbian.’ Also, ideas about forced marriages in Sub-Sahara Africa are somewhat rendered irrelevant and that lesbians have children even after having arrived in Germany is beyond their imagination.
A focus on sexual orientation and gender identity asylum claims in Germany reveals how sexual regimes in the asylum context always function in relation to hierarchies of gender, class, race, and cultural geopolitics. These intersections need to be addressed to establish a more just and inclusive European asylum system that truly reflects universal human rights values of international solidarity with marginalized groups in policy and practice.
[1] All names apart from that of the LGBTQI+ activists Ibrahim Moqdad have been changed to ensure the complete anonymity of the research participants.
Mengia Tschalaer (PhD) is a Research Fellow at the School of Sociology, Politics, and International Studies at the University of Bristol. Her work examines how Western regimes and ideals of law affect the access to justice of minority groups at the intersection of race, gender, sexuality and religion.
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Note
The research that supported the writing of this article has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie Individual Fellowship Programme [grant agreement No 793497] European Commission. More information can be found at www.queerasylum.org.
