‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Wednesday, 3 December 2014

CJEU judgment on 'gay asylum seekers' will have implication for the European Court of Human Rights

The Grand Chamber of the Court of Justice of the European Union on 3 December issued its judgment in A, B, C v Staatssecretaris van Veiligheid en Justitie. The case concerns the question whether EU law imposes any limits on the methods by which a state seeks to verify the sexual orientation of applicants applying for asylum.

Paul Johnson wrote a very interesting post about this judgment on ECHR Sexual Orientation Blog. He concludes:
"In light of the judgment of the Court of Justice, the European Court of Human Rights should review its ideas about sexual orientation and sexual identity and, specifically, consider: 
  • That many people who engage in a homosexual sexual relationship do not feel or wish to express a personal identity corresponding to that sexual relationship;
  • The absence of a self-expressed homosexual identity may be the outcome of a number of factors that include, at least, an individual's subjective understanding of their sexuality not being in accord with the contemporary 'Western' conceptual framework governing sexual behaviours and identities and/or an individual's conscious rejection of a personal identity based on this framework;
  • That the absence, adoption or rejection of a homosexual personal identity is significantly shaped by the broader cultural, legal and social relations in which individuals are situated and through which they become understandable to themselves and by others.
If the European Court of Human Rights begins to grapple with these points, it may be able to grasp the fact that there are no more 'real' homosexuals than there are 'fakes'. Rather, there are just individuals who sometimes have sexual relationships with other individuals of the same sex and, because such individuals are living in countries where these sexual relationships may result in persecution and death, they often attempt to maintain discretion and secrecy for reasons of personal safety and security. "
Full text of this post here. Earlier Paul Johnson wrote a post on European Courts Blog: Russia's anti-gay 'propaganda law' and the European Court of Human Rights

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