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European Court Bans Gay Testing for Asylum Seekers

Under the ruling, tests like "phallometry," which measures blood flow to the genitals in response to pornographic stimuli, will be banned.

by Melodie Bouchaud
Dec 3 2014, 10:06pm

Photo by Guillaume Paumier/Flickr

Europe's highest court Tuesday ruled that refugees seeking asylum in Europe on grounds of anti-gay persecution in their home country, will not have to submit to invasive testing to prove their homosexuality.

The European Court of Justice (ECJ) ruling came as several European countries, including the UK, recently came under fire for their handling of gay asylum seekers' claims.

In 2011, the UN, the EU and a number of human rights groups criticized Czech authorities for subjecting asylum seekers to "phallometric" testing, an archaic technique used for measuring sexual arousal. Phallometry, also known as "the erection test," measures blood flow to the genitals in response to audio and visual pornographic stimuli. The results are gauged with electrodes or rings, which are placed at the base of the penis to measure its growth.

In a November, 2013 ruling, the ECJ pronounced that gay refugees could claim asylum in the EU if their persecutions were "sufficiently serious" in nature, or repetitive enough to constitute "a severe violation of basic human rights."

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The decision was controversial because it meant that persecution alone did not guarantee asylum, only "sufficiently serious" persecution did — a distinction that outraged human rights campaigners at the time.

Following the ECJ's latest ruling, asylum seekers will no longer be obliged to prove their homosexuality. Authorities retain the right to ask claimants about their sexual orientation, but will be prohibited from asking intrusive questions on his or her sexual practices.

The judgment specifically stipulates that officials will not be permitted to ask for "homosexual acts to be performed, the submission of the applicants to possible 'tests' in order to demonstrate their homosexuality, or even the production by those applicants of evidence such as films of their intimate acts." Such demands constitute violations of human dignity, and are inconsistent with EU law, the court said.

The latest ECJ ruling was made off the heels of a case involving three gay African refugees who sought asylum in the Netherlands. One of the men is from Uganda, where homosexuality is a crime punishable with life in prison. The men were denied asylum because of doubts over their homosexuality, despite reports that one of the men had submitted video evidence showing him performing "intimate acts" with another man to support his claim.

After the men launched an appeal, the Dutch Council of State asked the ECJ to issue guidelines on how to verify asylum seekers' sexual orientation.

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French politician and European Parliament member, Sylvie Guillaume, who is also a specialist in refugee rights, told VICE News that the credibility of asylum claims rests primarily on refugees' "personal and individual testimonies."

Guillaume said that European officials handling gay asylum seekers' claims should shed preconceived notions about homosexuality.

"We can't ask people to go into detail about their [sexual] practices," she said. "You have to pay attention to the testimony, to the claimant's own words, and you have to cross-check the information."

"Some [EU] member states overstepped the boundaries," Guillaume added, "and we witnessed certain practices that completely violated human dignity."

Philippe Colomb, the director of ARDHIS, a France-based organization that defends the rights of LGBT asylum seekers, echoed Guillaume's sentiment.

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Colomb told VICE News that ARDHIS is currently working with some 300 claimants, many of whom have fled francophone countries in Sub-Saharan Africa, where homosexuality is criminalized.

While the situation for LGBT asylum seekers has improved in France in recent years, progress has not been as forthcoming across the rest of Europe, Colomb said.

Colomb explained that for many asylum seekers, speaking candidly about their personal lives to an immigration official can be daunting.

"Their whole life, they've been taught not to speak out, and suddenly, they're being questioned in an office that looks a lot like a police interrogation room," he said. "Our job is to make sure these people can tell this extremely intimate story that has remained a taboo their entire life."

Homosexuality is illegal in more than 70 countries, and carries a death penalty in Mauritania, Nigeria, Somalia, Sudan, Saudi Arabia, and Iran, according to the International Lesbian, Gay, Bisexual, Trans, and Intersex Association.

Follow Mélodie Bouchaud onTwitter: @meloboucho

Image via Flickr