Patrolling the Borders of Sexual Orientation: Bisexual Refugee Claims in Canada

44 Pages Posted: 4 Sep 2009

See all articles by Sean Rehaag

Sean Rehaag

Centre for Refugee Studies & Osgoode Hall Law School, York University

Date Written: September 4, 2009

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 sexual minority 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.

Keywords: refugee, asylum, bisexual, bisexuality, sexual orientation, law, Canada, queer theory, compulsory heterosexuality, persecution, empirical

Suggested Citation

Rehaag, Sean, Patrolling the Borders of Sexual Orientation: Bisexual Refugee Claims in Canada (September 4, 2009). McGill Law Journal, Vol. 53, p. 59, 2008. Available at SSRN: https://ssrn.com/abstract=1468712

Sean Rehaag (Contact Author)

Centre for Refugee Studies & Osgoode Hall Law School, York University ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

HOME PAGE: http://www.osgoode.yorku.ca/rehaag-sean/

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