The 1951 Geneva Convention defined the concept of what a refugee would be internationally. The text of the document states that the refugee is one who “fears persecution on grounds of race, religion, nationality, membership of a particular social group or political opinion” (United Nations, 1951, p. 6). The term “social group” in this sense was added at the end of the deliberations on the Convention to allow opening for other reasons not dealt with in the text (Hathaway, 2012). In international politics, it is common for topics related to gender and sexuality to be read from general categories such as “social group”. For example, in the International Covenant on Civil and Political Rights (1966), Article 26’s provision on non-discrimination includes the categories of “race, color, sex” and “other status” (França, 2017). This creates numerous problems as generic terms imply a variety of interpretations that are not always favorable to LGBTI + (short for lesbian, gay, bisexual, transgender, intersexual, and other gender and / or sexual identifications).
Nonetheless, the United Nations High Commissioner for Refugees (UNHCR) has been dealing with issues of gender identity and sexual orientation since 2002 through the publication of guidelines and notes. Internationally, asylum has been recognized on the grounds of gender and sexuality since the 1980s. The Netherlands was the first country to grant asylum in this direction, followed by Canada, Australia and the United Kingdom (Gorish, 2017). Although migrations due to gender and sexuality are not new, the numbers in the so-called “LGBTI + asylum” have increased increasingly worldwide in the last few decades, which necessitates new normative considerations and creative measures.
The variety of cases and problems that arise from the interface between asylum, gender and sexuality is immense. Since genders and sexualities in their diverse possibilities cannot be objectively measured or proven, they raise very different questions. Overall, the asylum seeker’s admission process is anchored in his narrative before the opinion of the host country officials, who are theoretically trained to deal with a multitude of stories. Since each country has a different bureaucracy to carry out this funding process, the practices vary widely. The idea of a “reasonable fear of persecution” in the 1951 Convention suggests an objective subjectivity, as Nyers (2006) would put it. Fear of persecution motivated for any of the above reasons must be reasoned, objective, certain, and true. In this way, they are looking for the person who is considered a genuine asylum seeker and who needs international protection from a third country due to displacement.
But how can you prove that the persecution is based on gender and sexuality? How can you prove a gender and a sexuality? Genders and sexualities are part of human experience and are subject to different rules. Everyone has a gender and a sexuality that are socially expressed and recognized between encounters, experiences and cultures. It is not possible to prove a gender and / or a sexuality as they cannot be measured as strictly biological or physical. In our world, however, scientific discourse is used as a logical checker of the “truths” of life. And that has been the case for a long time when it comes to gender and sexuality issues. In this way I will briefly discuss how technology and science are used in cases where asylum seekers have to test their genders and sexualities in order to be recognized as “true” refugees, as the law provides.
The truth of science
According to Foucault (1978), sexuality has long been the target of a repressive force mechanism. In the 17th century, the bourgeois order that was established with the firmament of capitalism understood sex and sexuality from the Christian point of view of prohibition and censorship, which in turn led to even more discourses on this topic. In the 18th century, sexuality became of public utility and interest not only to theology but also to psychiatry and criminology. Hence the differences are born that make up what is considered normal and what is considered pathological / criminal. The word homosexuality is created as a medical category and the subject of study and experimentation. For Foucault (1978) this reproductive biology and sexual medicine created truth determinations in the 19th century, which became stony and unambiguous norms.
A truth is a construction of meanings expressed through various forms of knowledge. Using this logic, the truth about sex and sexuality can be obtained through two ways of understanding the world in general, according to the author. As ars eroticaSex is seen through its qualities and its holiness. It’s a secret, not because it’s forbidden, but because it’s discreet, magical, and artistic. As a Scientia SexualisSex is understood under the logic of knowledge, which is established as a form of power. From this second perspective, the West produces truths about sexuality through religious confession in the realm of sin and through science in the realm of rationality. It is an obsession that organizes what is considered normal practice or behavior and what is considered sin and needs to be purified. And sometimes it is an obsession based on the ideal of normality and the danger of pathological deviations that need to be cured. These various discourses form a web of fragmented, lost, and broken meanings in science, philosophy, religion, and law (Foucault, 1978). They form our static and unified view of gender and sexuality and our fixation on these issues, which are emphasized by the multitude of identifications that exist.
The history of the identifications that make up the acronym LGBTI + is reflected in a binary system organized along the lines of women and men, heterosexuals and homosexuals, normal and pathological. Through 19th century medical and legal “curiosities”, and through understanding genetics, hormones, gonads, and criminology, the truth of science regarding sexuality and gender has become another level of norms that enable discernible coherent identification. Still, gender or sexual experiences are purely social and not scientific. The knowledge of doctors and “experts” in this context feeds a narrative of normality that is reinforced by binary terms, surgical adaptations, treatments, therapies and invasive tests and restricts the possibilities of life in supposedly timeless and universal terms and identity categories (Fausto Sterling, 2000).
However, I must not exclude the physical-biological factor of gender and sexuality (even more so in the development of surgeries and drugs to change the body), but treat it in a more malleable manner, without reinforcing truths that exclude other bodies and experiences or violate fundamental regulations Human rights. With this in mind, the phallometric test for the LGBTI + asylum is an important case that needs to be discussed. Phallometric tests are generally associated with arousal tests, which measure fluctuations in blood flow in the asylum seeker’s genitals through pornographic audiovisual stimulation to prove the alleged sexuality in his process (Nascimento, 2018). This type of test has been used in the admission process for asylum seekers in the Czech Republic (the country where the test was invented) in recent years (França, 2017; Gorish, 2017).
The test was invented by the Czech doctor Kurt Freund in the 1950s and was used to diagnose men’s sexuality. Freund observed erections using visual / auditory stimulation and an air chamber with volume measurement around the genitals to create his data. For the scientist, the test correctly indicated the “sexual identity” of his patients, but had no therapeutic purposes, ie it could not treat sexual deviations. In the following decade, the 1960s, the behaviorist S. Rachman began using the phallometric test to treat sexual deviations from the idea of aversion therapy. For the scientist, these deviations consisted of fetishes that could be eliminated by classic conditioning techniques such as those used today to train animals. With the establishment of the gay civil rights movement in the US and Europe in the 1970s, aversion therapy was abandoned (Epstein and Waidzunas, 2015).
The phallometric test was used in the 1980s to treat erectile dysfunction and in the 1990s to create patterns that can be used to identify pedophiles and sex offenders. The moral panic surrounding sexual assault was high in the 1990s when rape emerged as a weapon of war in the conflicts in Bosnia, Rwanda, Angola and the Democratic Republic of the Congo. As the history of the phallometric test has evolved over the years, so have its methods. Today the test consists of electrodes that work by electrical impulses and no longer by measuring the air volume invented by Freund (Epstein and Waidzunas, 2015).
What intrigues me here, however, is its use in recent years to prove the sexuality of asylum seekers who already have the trauma of having been persecuted for these reasons. These people are surrounded by an atmosphere of humiliation, shame and violence. The use of the phallometric test as an option in Europe exposes the scientific-biological tendency in the West to address issues of gender and sexuality. Somehow the body can be subjected to a test that measures “the exact level of arousal” to determine whether the asylum seeker’s narrative and identity are legitimate. And because of this certainty, the test can be useful in locating this “true refugee” in need of international protection, as provided for by the 1951 Convention. If the asylum approval process continues to be tied to the idea of finding the “real refugee” using their normative definitions, technologies like phallometric testing can be misused to crystallize identifications, narratives and truly unique life experiences.
These uniform narratives do not exist. They are just an illusion that is emphasized in the reality of different times, migration flows and individual cases. Genders and sexualities cannot be measured or validated because they are born in social and cultural exchange. It is impossible to capture the variety of identifications, desires and practices as international asylum law tends to be applied, that is, with a similar fixation that science has to find exactly the right answer. Phallometric tests are not the answer. The invasion and pain that such tests cause bring with them injured people who are already marked by violence, prejudice and fear. The tremendous variety of eligibility processes around the world cannot be due to a sterile use of science that reflects the harm this type of discourse is causing and causing to LGBTI + people.
In addition, the phallometric test violates the basic human rights and integrity of these migrants, as we can see in the next section. It certifies admissions procedures that are stereotyped and cold dates without considering the asylum seeker’s past and the limits of this type of degrading test. Genders and sexualities cannot and must not be measured as something uniform, exact or stable. The next section discusses the problems of the phallometric test itself, taking into account international human rights laws and principles.
In 2011, UNHCR published the note “Comments from UNHCR on the practice of phallometry in the Czech Republic to establish the credibility of asylum applications for persecution based on sexual orientation”. In it, the institution argues that phallometric tests are incompatible with international human rights standards. It is hardly possible for asylum seekers to prove every part of their stories and thus their gender and sexuality. Gender identity and sexual orientation are not automatically recognized by “evidence”. These are comprehensive concepts that involve self-identification and relate to the social and cultural contexts of each migrant. The scientific obsession with the appropriate gender / sexuality / genitals is a powerful construct, but excludes the multitude of ways of being, living and feeling these aspects of human life.
In these cases, information about the country of origin and support from non-governmental organizations can help more as they can provide clues about different gender and / or sexual identifications of each region / country and help with a respectful and decent welcome. As they come from a reality of persecution, asylum seekers need to feel safe. Well-trained staff who, in addition to the information already mentioned, deal with the specifics of asylum applications based on gender and sexuality should be sufficient to grant asylum in accordance with the UNHCR documents (UNHCR, 2011).
Invasive testing creates feelings of shame, intimidation, and humiliation, and creates a dynamic of persecution from which the asylum seeker suffers. According to the document, invasive testing violates the right to privacy and the prohibition of torture and cruel, inhuman, degrading or invasive treatment. The phallometric test involves exposing the genitals under observation and intrusive inspection over long periods of time. This affects the dignity of the human body as well as the mental and physical integrity of these people. Fear, pain, and suffering can all be implicated in this logic. In addition, everyone must have protected the right to privacy, as sexuality and gender are part of the private lives of these migrants. According to international human rights documents, phallometric tests should not be trusted to prove a person’s sexuality and therefore should not be used in asylum cases based on these conditions. The text makes it clear that this also applies to the use of photoplethysmography or the “VPG” vaginal method on lesbian asylum seekers (UNHCR, 2011).
In addition, the Yogyakarta Principles of 2007, elaborated by experts on gender and sexuality outside the scope of the United Nations, reaffirm the right of asylum in its twenty-third principle: “Everyone has the right to seek and enjoy asylum from persecution in other countries . including persecution related to sexual orientation or gender identity. A state shall not remove, deport, or extradite a person to a state where that person is exposed to a reasonable fear of torture, persecution or any other form of cruel, inhuman or degrading treatment or punishment based on sexual orientation or gender identity ”(The Yogyakarta Principles , 2007, p. 27). In addition, the eighteenth principle of the document states: “No one shall be compelled to undergo any medical or psychological treatment, procedure, test or medical facility based on sexual orientation or gender identity” (The Yogyakarta) Principles, 2007, p. 23).
Finally, tests like phallometry materialize male desire from the normal and pathological, heterosexual and homosexual binaries, and rule out a number of identifications of what it means to be a man and his desires. In this way, the penis becomes the center of male sexuality, creating invisible bodies that deviate from binary files and are located between places such as intersex people (Fausto-Sterling, 2000). This fixation on the genitals only reinforces a western neurosis with scientific truth about coherent genders and sexualities and, furthermore, with the (re) production of truths about international personalities such as refugees.
Other technologies are currently being used to identify “real” LGBTI + refugees. The use of retinal scanners is already a reality for asylum seekers worldwide (WebWire, 2019). In recent years, brain scanning via fMRI has been used to identify sexualities and / or sexual preferences based on the truths of the body (Epstein and Waidzunas 2015). But what is behind these technologies? What is behind the technologies that have recently been used in expressive migrations like the Venezuelan one from Latin America? How important is technology in gender and sexual issues? These are questions that are put on the international agenda and should not be forgotten even in a chaotic pandemic scenario. The truths that science searches for do not always coincide with the plurality of gender and sexual identifications and should be viewed with caution by those who implement the rules and have the power to influence their impact on the harsh reality of LGBTI + people apply around the world. LGBTI + asylum seekers need protection and opportunities to live their genders and / or sexualities without fear.
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França, Isadora Lins. (2017). “Refugiados LGBTI: direitos e narrativas entrecruzando gênero, sexualidade e violência”. Cadernos Pagu, 50.
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Nyers, Peter. (2006). “Rethinking refugees: beyond the state of emergency”. Routledge.
The Yogyakarta Principles. (2007). “The Yogyakarta Principles: Principles for the Application of International Human Rights Law Relating to Sexual Orientation and Gender Identity”.
UNHCR. (2011). “Comments from the UNHCR on the practice of phallometry in the Czech Republic to establish the credibility of asylum applications for persecution based on sexual orientation”. Office for Europe.
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WebWire. (2019). “Keeping an eye on a more secure future for refugees”. Available in:
Further reading on E-International Relations