A semester kick-off event organized by the Refugee Law Clinic Berlin e.V. and the Humboldt Law Clinic Grund- und Menschenrechte.
The recognition of fundamental rights and human rights is one of the greatest achievements of our society. Unfortunately the existence of rights does not automatically mean achieving justice, as Katharina Stübinger reminded the participants of the event in her opening speech. While refugees and migrants are facing many obstacles in accessing their rights more broadly, queer refugees and migrants are often confronted with additional difficulties.
Since its foundation in 2014, the Refugee Law Clinic Berlin e.V. (RLC Berlin) has strived towards tearing down some of these obstacles by offering free and competent legal advice to asylum seekers and migrants. The Humboldt Law Clinic Grund- und Menschenrechte (HLCMR) aims to defend fundamental and human rights, as well as pushing anti-discrimination and inclusive politics forward. In one way or another, both work towards providing access to justice, and advocating for change. Both Law Clinics work at the intersection of legal theory and activism – two spheres that may seem contradictory at first sight. However, on closer inspection, they hold great potential for reciprocal benefit in effecting progressive change.
This idea led the two Law Clinics to jointly organize the event ‚Flight, Gender, Activism’ on 15th April 2021, to raise awareness about the particular hardships that queer refugees and migrants are encountering in their fight for justice. The question was also posed: ‘How can legal studies and activist work benefit from each other?’. The aim of this was to equip the public with crossover strategies across the fields of legal theory and activism, with a view to actively tackle the obstacles faced by queer refugees and migrants.
In order to answer the question of the evening, the panelists Dr Petra Sußner, a legal scholar of migration law, as well as legal gender studies at Humboldt-University of Berlin and Faris Cuchi Gezahegn, a human rights and LGBTIQA* advocate as well, as a performance artist with personal flight experience, had a lively discussion led by Johanna Mantel, a lecturer of the RLC Berlin and editor at the Informationsverbund Asyl und Migration.
A STRONG LEGAL FRAMEWORK DOES NOT AUTOMATICALLY GUARANTEE SAFETY
The evening’s topic was based on the premise that migration issues are – in many ways – also queer issues. In fact, a strong legal framework to protect queer issues within the asylum law is already in existence: gender and sexuality are well-established as persecution grounds in the Qualification Directive 2011/95/EU, while the Reception Directive 2013/33/EU establishes protection against gender based violence. Nevertheless, legal theory and practice are far apart: recognition is lacking and people are not safe. How does this fit together?
First of all, the discrimination of queer refugees is not necessarily limited to gender-related discrimination, as Gezahegn elaborates. Discrimination is therefore rarely monodimensional, but intersectional. Apart from the general ‚vulnerability’ that comes with the status of a refugee within the host society, Racism, Classism and many more stigmas play a significant role, which leads to additional, interconnected obstacles not just in daily life but also in the different stages of the asylum process. The potential to experience discrimination and/or violence is high.
Experience shows, for example, that going through the asylum process often differs significantly depending on the person’s country of origin. There are different prejudices associated with the respective countries, as the legal practitioner Barbara Wessel alluded to during the open discussion at the later part of the event.
These presumptions are again often connected to racist stereotypes, colourism as well as the person’s social background, as Gezahegn added. The statements of white and lighter skinned refugees of colour, and refugees who have a high level of formal education are often questioned much less than those of darker skinned people of colour, and people without formal education. The proximity to Whiteness plays an important role, as well as the ability to express oneself, in terms of being recognized as a refugee.
While the authorities of the country of residence might discriminate a refugee for his*her*their ethnicity or country of origin as well as being queer, a queer person might also be rejected by other refugees or by his*her*their own community for being queer. One major problem of the asylum process is therefore certainly the experience of violence that many queer people face in the accommodation centers. Although queer refugees are entitled to protection against discrimination, there are hardly any safe spaces being provided or LGBTIQA* safety concepts applied. As long as there is no enforcement of protection standards to meet the needs of queer people, it is upon committed lawyers to make housing a legal issue.
Nevertheless, in some cases the intersection of discriminatory features might also be decisive for being recognized as a refugee: Nigerian refugees, for example, normally get declined in the Austrian asylum system, because the courts see an internal flight alternative for the majority of cases. In the case of lesbians from Nigeria, however, several cases got recognized since the internal flight alternative is not assumed for their specific situation.
THE MISLEADING SUGGESTION OF ASYLUM
In contrast to these practical problems, the concept of asylum must also be analyzed. Sußner sees the asylum law as a very ‚strong‘ field of law, but according to her it can also be seen as a trap when it comes to gender and sexuality. The reason for this is that the right to asylum suggests that (queer) refugees are only in danger, as particularly affected by patriarchy, gender discrimination, heteronormativity etc. in their countries of origin, while the narrative for the country of residence presents a gender equal, queer-friendly safe space. This completely ignores the fact that not everybody is (fully) safe in countries such as Germany or Austria either. In the countries of origin, as much as in the countries of residence, heteronormativity can create very traumatic and/or dangerous situations. Nevertheless, the narrative of a safe country of residence continuously creates an illusion of achievement that the countries of the global north have not yet attained.
One of Sußner’s key theses is that heteronormativity causes persecution and undermines the protection system. The reason – among others – being that heteronormativity is connected with many stereotypes about queerness, which often lead to rejection in the asylum process if a queer asylum seeker does not fulfil them. It is therefore of utmost importance to first of all unlearn thinking in heteronormative structures. Not every queer person is out, but this does not mean that they are not in danger, nor that they deserve less protection.
THINGS TO KEEP IN MIND WHEN WORKING WITH QUEER PEOPLE
For lawyers in the field of asylum law in particular, it is important to keep in mind that terms like sexuality, gender, LGBTIQA* have their roots in the global north while people of the global south might use a different language. Still, they might have an idea what these words mean, because they are used by the authorities.
This is also highly relevant for the type of activist work which intends to offer, for instance, legal help to queer refugees. Instead of using the western keywords that refer to the queer community, Sußner suggests to be very concrete; to let people know about what kind of behaviour can be persecuted and about the activists which are in the position to offer support: ‚Are people attacking you for who you love? This is acknowledged as persecution grounds.’ might be more effective in reaching out than ‚We offer legal LGBTIQA* consultation‘.
While being visible for the people you want to address as an organization is essential, it is also important to not put your prospective clients in danger. A person who is not out yet might refrain from picking up a LGBTIQA* related flyer in a public space, whereas a sticker in the toilet of an accommodation center might be the more accessible source of information.
LAWYERING AS AN ACTIVIST TOOL – MAKE SPACE FOR THE PERSPECTIVE OF YOUR CLIENTS
Sußner emphasized the possible benefits of using lawyering as an activist tool. For lawyers working in the field of asylum law, it is essential to find a narrative that promises success. Nevertheless, each case can also be used as a chance to make space in the courtroom for the voice(s) of the respective client(s). This can be done by first sticking to the language/arguments that is/are usually acknowledged in similar asylum cases, after which a section with a different perspective can be added. This section might, for example, elaborate why the aforementioned reasons that forced a person to flee can also be seen as political persecution due to overstepping heteronormative gender norms. By applying this strategy, a different narrative can be offered to the court without taking the risk of losing the case by shifting the narrative ‚too far‘ all at once.
THE POWER OF LANGUAGE
Not only does shaping the narrative play an important role in the asylum process – language itself does so, too, as Sußner emphasized. While the usual argument is that queer people are being persecuted for what they are – which implies that the problem arises from the persecuted person – it can as well be argued that people are being persecuted for overstepping heteronormative rules, to specifically address heteronormativity in the asylum process as a problem. (Re-)Framing can be a strong tool.
However, during the asylum process, language is not only a problem within the courtroom. Different aspects of the importance of language in the context of the asylum process have also been pointed out by Gezahegn. Language is a condition to storytelling which in turn plays a significant role in formulating counter-narratives. In that way, language can be a very political tool. Gezahegn highlighted that the language of the host country as a foreign forced language is something that takes away power from refugees, as well as from migrants in general. It not only limits the options of people in terms of expressing their needs and feelings, but also may paralyze them and silence their voices in the political debate.
THE IMPORTANCE OF COUNTER NARRATIVES IN THE FIGHT AGAINST QUEERPHOBIA
The advocacy work that needs to be done to create a safe(r) environment for queer people does not limit itself to the borders of the host countries but must be tackled with a global perspective. In regard to this, Gezahegn further stressed the need to challenge white supremacy – everywhere. Since white supremacy is a system that can be performed by anyone, it does not even require white people to be propagated. The indoctrination of anti-queerness in African countries for example, is connected to white supremacy and colonialism. As such, it must be tackled by reconstructing and upholding counter-narratives to the pervasive notion that queerness is alien to the African culture as queerphobic people might argue. In fact, there is evidence that in the pre-colonial period, many African cultures had a different understanding of sexual diversity and gender diversity before the recent queerphobic legislation in African countries was introduced in the colonial period. At that time, European penal codes came into power in many African countries and are creating and warranting violence to queer bodies until today in several cases. However, the indoctrination of white supremacy and heteronormativity does not only lead to exterior discrimination towards queer people. It may also cause a queer person to develop severe self-loathing and psychological problems. However, several countries that overtook the criminalization of homosexuality from their colonial period have been legalizing it in recent years (for two examples see here and here).
In addition to formerly colonized countries that are active in pushing forward the process of decolonization, the narrative of countries as role models in progressively upholding human rights must be deconstructed. These countries have the responsibility to always increase their efforts in the field of anti-discrimination wherever possible. There is still much work to be done until queer people are safe everywhere.
Are you a refugee in Germany who has experienced discrimination because of the person(s) you feel attracted to? Do you need support during the asylum process, or simply want to get in touch with other refugees going through the same experience? Reach out to the LSVD for help and information here.
DISCLAIMER
To make the world a safe place for queer people is a task that concerns us all. In cases of systematic injustice, it is of the utmost significance to dismantle this. Whilst queer people are unquestionably the experts of their own needs, a queer person – especially a queer refugee with an unsecured residence status – may be in danger if he*she*they speak up themselves. The condemnation must therefore be articulated by those with a safe residency permit: by white people becoming allies and using their privilege to speak up.