E.U. Court Rules Against 'Gay Tests' for Asylum Seekers

When three men from Uganda, where gay sex is illegal, sought refuge in the Netherlands because they were gay, Netherlands officials told the men to prove it. Now the European Union Court of Justice has ruled that Dutch authorities were wrong in asking the men to prove their sexuality and then denying them asylum because they did not prove they were gay, UPI reports.

The E.U. court's ruling, issued Tuesday, all but prohibits "detailed questioning as to the sexual practices of an applicant for asylum and the option [for authorities] to allow the applicant to submit to 'tests' with a view to establishing his homosexuality and/or of allowing him to produce, of his own free will, films of his intimate acts" because such practices would violate basic E.U. principles.

According to the court, "Such evidence does not necessarily have probative value, such evidence would of its nature infringe human dignity, the respect of which is guaranteed by Article 1 of the Charter," a reference to the E.U. Charter of Fundamental Rights.

A 2011 E.U. document notes the egregiousness of so-called "phallometric testing," which consists of "'verifying' the physical reaction to heterosexual pornographic material of gay men who have filed a claim for asylum on the basis of homosexual orientation."

Experts' Reactions Mixed
Steve Peers, professor of E.U. law and human rights law at the University of Essex, and others noted that not everything in the court ruling was favorable to LGBT asylum seekers. In his blog, Peers remarked that asylum administrators may have to rely even more heavily on stereotypes for those applying to flee their home countries. He also wrote that the court does not take into account the wide range of sexual identities and gender expression.

"The Court ruling might be interpreted to endorse assumptions that (for instance) gay men don't like sports, or that lesbians have short hair. Such stereotypes might be only mildly annoying on a day-to-day basis," Peers wrote. "But if they are used in order to reject an asylum claim, they could be fatal to the person concerned. Admittedly, the Court rules out relying on the answers to such questions as the sole basis for denying asylum. Nor is it possible to decide that an asylum seeker who can't answer such questions has no credibility. But it is still possible that an asylum seeker will lose credibility if he or she gives the 'wrong' answer to these questions; and those answers can form part of the assessment of credibility."

Thomas Spijkerboer, professor of migration law at Vrije University Amsterdam noted in a tweet, "The bad news is that the EU Court holds that stereotypical notions 'may be a useful element' in credibility assessment."

According to Peers, the Ugandans' cases will be sent back to the court in the Netherlands for reconsideration of the men's asylum applications, which were originally denied because they did not prove they were gay.

Although its infamous, albeit short-lived, "jail the gays" law was overturned in August, Uganda is still a place where being gay is prohibited by law and persecution of LGBT people continues. Additionally, it appears a new, draconian Anti-Homosexuality Act may be passed by Parliament any day.