Document Type

Article

Publication Date

2008

Source Publication

McGill Law Journal. Volume 53 (2008), p. 59.

Abstract

Canada’s current definition of a refugee includes those facing persecution on account of sexual orientation. This article demonstrates that the success rates for sexual-minority refugee claims are similar to the success rates for traditional refugee claims. However, one subset of sexual-minority refugee claimants, those alleging a fear of persecution on account of bisexuality, is far less successful.

The author contends that a major cause of the difficulties bisexual refugee claimants encounter is the dominant understanding of sexual orientation as an innate and immutable personal characteristic. This view of sexual orientation underlies contemporary Canadian sexual-minority refugee law. The life experiences of many bisexual asylum seekers, however, cannot be easily located within such an understanding. This leads many refugee adjudicators to approach accounts of bisexual life narratives with skepticism.

Drawing from the tradition of queer theory, the author concludes that refugee adjudicators should embrace an alternative understanding of sexual orientation that can accommodate a multitude of sexualminority life stories. This understanding views sexual orientation as flexible and fluid. The author presents specific ways in which such an understanding may be applied to decision making regarding sexual-minority refugee claims. All encourage decision makers to focus not on the sexual identity of claimants but rather on evidence of their persecution on account of traditional gender roles and compulsory heterosexuality.

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