The Right of Lesbians and Gay Men to Live Freely, Openly and on Equal Terms is Not Bad Law: A Reply to Hathaway and Pobjoy

Abstract

In this short note, I address Hathaway and Pobjoy’s critique of the decisions of the High Court of Australia and Supreme Court of the United Kingdom, respectively, in S395 v. MIMA (2003) 216 CLR 473 and HJ and HT v. SSHD [2010] UKSC 31. These cases represent the two highest-level judicial determinations in the world to address gay refugee claims to date. These decisions emphatically reject ‘discretion’ reasoning, affirm that the experience of sexual orientation extends beyond mere private sexual conduct, and articulate the importance of equality — both as between gay and straight people in the country of origin and between sexuality claims and other categories of claimants in the receiving country — in applying the protections of refugee law.

In Part III of their article in this special issue, Hathaway and Pobjoy claim that S395 and HJ and HT, in articulating a right to live freely and openly, have taken an “all-embracing formulation” to “action-based risks” associated with sexual orientation. The judgments, they say, “seem to assume that risk following from any ‘gay’ form of behavior gives rise to refugee status.” The authors argue to the contrary that refugee law should “draw a line” to only protect actions deemed integral to sexual orientation and not those that are deemed peripheral, trivial or stereotypical. The premise of Hathaway and Pobjoy’s piece — that the two highest level judgments to affirm equality for sexual orientation refugee claimants have gone too far — merits pause. I contend that Hathaway and Pobjoy’s argument is both wrong in principle and dangerous in practice.

Keywords: refugee law, asylum, sexual orientation, lesbians and gay men, gender based persecution, sexuality, sexual identity

JEL Classification: K33