EU Court advocate general against humiliating tests to prove sexual identity of asylum seekers

October 31, 2017
Photo: Wikimedia Commons/Daniel Sone

LGBTQ people who seek refuge in Hungary because of discrimination in their home countries are often tested by psychologists who use personality projection tests to determine the veracity of their professed sexual orientation – a procedure both scientifically debated and often humiliating. The EU Court of Justice’s advocate general disapproves of any such humiliating, non-consensual, stereotyped or non-scientific tests applied to asylum-seekers.

“Firstly, a cursory look at the scientific literature shows that, according to a number of studies in psychology, homosexual men and women are not distinguishable from a psychological viewpoint from heterosexual men and women,” wrote Nils Wahl, the EU Court of Justice advocate general in his opinion on a question raised by a Szeged court. Wahl referred to the personality projection tests the Hungarian Immigration and Asylum Office as well as Hungarian courts accept as expert opinions about an asylum-seeker’s sexual orientation, and later take into account when deciding if the asylum-seeker’s identity necessitates protection.

Hungarian law doesn’t specifically cite gender or sexual orientation as a reason to grant asylum, however persecution because of gender identity is cited as a way refugees could be victimized in their home countries. This is in line with provisions of the Geneva Convention which define refugees as belonging to a social group (such as a sexual minority) that cannot feel safe in their home countries. Homosexuality is still punishable by death in 13 countries, and is criminalized in 72 countries around the world which don’t protect their lesbian, gay, bisexual, transgender and queer citizens from discrimination. LGBTQ people who seek asylum in Hungary and other countries base their claims on the legal, social and physical threats their identities subject them to in their home countries.

A Nigerian client of human rights NGO Hungarian Helsinki Committee sought asylum in Hungary because his sexual orientation is not tolerated and is punished by law in Nigeria. However, Hungary denied his asylum claim because the Asylum Office said his homosexuality was not proven by psychological tests, and that he was “masculine.”

The Szeged Administrative and Labor Court, where the Helsinki Committee took the matter after the asylum denial, requested a preliminary ruling in the case from the EU Court of Justice. Wahl’s legal opinion can now be used as guidance for the future F versus Hungarian Immigration and Asylum Office judgment. Wahl states that psychologists’ expert opinions can be requested during the asylum procedure, but should not be legally binding for the authority. The test itself should be consensual, reliable and respectful of dignity and privacy, Wahl said.

According to the Helsinki Committee, while physical examinations are illegal and long gone and the EU Court has issued several judgments against questions and tests directed at asylum-seekers’ sexual lives, asylum-seekers who are applying for refugee status because of their sexual orientation are still investigated in a humiliating and unreliable manner in Hungary. The underlying problem is that the results of a few hours long Rorschach or Szondi test are so highly respected by the authorities that they don’t question such results, even if they can only determine probable sexual orientation, according to human rights advocates. Such tests go against the basic principles of asylum procedures in expecting compelling proof of sexual orientation, the Helsinki Committee says, since refugees are in extremely vulnerable situations, documents get lost during their journey, and LGBTQ people feel significantly stigmatized and are often unwilling to talk about their traumas.

Meanwhile, the use of the psychological projection tests is very often inherently based on stereotypes. As Wahl wrote, “It would seem to me […] that such types of analysis inevitably involve the use of stereotyped notions of the behavior of homosexuals. In fact, when asked at the hearing, the Hungarian Government was at pains to explain why the analysis at issue in the main proceedings did not involve the use of stereotyped notions.”

UNHCR guidelines recommend that the authorities themselves investigate the matter in the form of an interview based on a professional question guide. Helsinki Committee has also developed such a guide for the interviewers that is distributed internationally. This questioning method is based on creating a safe space for potentially traumatized people, instead of psychological tests. Answers are evaluated by credibility indicators in connection with stigma, shame, and feared and experienced harm. Using this framework, instead of trying to prove sexual orientation, interviewers would prove whether the asylum-seeker’s story stands up based on a sensitive treatment of their experiences.

Helsinki Committee sees the advocate general’s opinion as one more step in the direction of the use of their guidelines, and a more humane asylum procedure that would no longer refuse protection just because someone is “masculine.”