Papers

Fleeing Homophobia Conference

VU University Amsterdam, 5 and 6 September 2011

Who is paying the Price? Queer Refugees and the Legal Recognition of Same-Sex Partnerships
Petra Suner *

Let me start in 2001. This is when the Life Partnership Act was passed in Germany, legalizing registered partnerships for same-sex couples, and thus turning so-called gay marriage into legal reality. Equal rights activists celebrated. Fatima El Tayeb used this step as an opportunity for raising the issue of the category of race within this discourse around the legal recognition of sexual outlaws, respectively certain same-sex lifestyles. Under the title Limited Horizonsshe did not mince her words: [The analysis of German society itself] is still dominated by the conviction that race is a concept which with the exception of the years between 1933 and 1945 is irrelevant in the German context and can thus be safely disregarded. [...] A practice which in the case of queer identity with increasing exclusiveness is directed at the assimilation of white lesbians and gays to a European system whose practices of exclusion, in turn, are more and more clearly based on racist criteria. (El Tayeb 2003: 130) And further: The question, to what extent lesbians and gays, who are part of the German majority population, benefit from the increasing racial exclusion as they have the right passports, skin colour and religion is barely asked. (El Tayeb 2003: 132) Notably Fatima El Tayeb's critique was published before Jasbir Puar broke an important ground by coining the term homonationalism, thereby adressing the national inclusion of 'proper' lesbian or gay subjects contingent upon the segregation and marginalisation of racial 'others'. (Puar, 2007) Meanwhile both in academia and in activist circles the critique of normative queerness and the discursive framing of Western LGBTQ people as persons, who are in need for protection from 'homophobic migrants', has gained currency (cf Haritaworn, 2010). As a matter of fact this critique does not spare LGBTQ contexts and their tendency to frame whiteness as the normal condition. A
*

PhD Fellow, IK Gender Violence and Agency in the Era of Globalization, Faculty of Social Sciences, University of Vienna.

well known example was offered by Judith Butler turning down the Berlin Pride Civil Courage Price in 2010. Referring to the concept of homonationalism, she harshly criticised the organisers' lack of distance from racialist politics and stated that she would pass the price to queer of colour organisations, if she were able to. Recently Christa Markom and Ines Rssl addressed an aspect of this debate that is of peculiar interest for my contribution:

Thereby the turkish woman' and the 'turkish man' are assumed to be heterosexual. There is hardly space for the picture of a 'gay or lesbian turk' within the (political, media and everyday-) discourses. (Markom/Rssl, 2010: 321) In my contribution I want to take up the issue of invisibility of LGBTQ people, who do not have their origins in the modern 'enlightened' West, and ask which legal mechanisms of segregation we implicitly serve, if we turn to a Politics of Rights (cf Hark, 2000). In concrete terms I will turn to the introduction of the Registered Partnership Act (RPA) in Austria and the corresponding ancillary chances within Asylum Law. The legal recognition of same-sex partnerships shall thereby serve as my point of departure, as it is considered as one of the most evident manifestations of LGBTQ equal rights politics and thus offers an exemplary arena to untangle the mechanisms of exclusion that are coming along with such politics.

Queer & Refugee an Invisible Subject Position? Returning to my point of departure let me first make plain that legal recognition of same-sex partnerships in Austria has no distinguished or long history to look back on. The RPA has just been launched in 2010 and not everybody felt like celebrating. Equal rights activists were sceptical with good reason. For those who are not concerned with the legal recognition of a heterosexual two-person relationship adoption remains impossible. 1 Moreover, the law also denies them access to the possibilities provided by reproductive medicine. 2 With this bill, the legislator has not left any doubt about who is perceived to be entitled to reproduce society, and who is not not to mention the bureaucratic discriminations same-sex partners have to face. At the same time there has been little debate about the ancillary changes within Asylum Law that have been coming along with the RPA a phenomenon that suggests a relatively silenced position of LGBTQ refugees. When Fatima El Tayeb made the Life Partnership Act in Germany a subject of discussion in 2001, she was already addressing that, according to the logic of a modern and liberal
1 2

cf Paragraph 179 Civil Law Code cf Paragraph 2 Reproductive Medicine Act

constitutional state, the demand for rights does not only harbour the danger of being infiltrated by heteronormative ways of thinking, but also supports a system which currently uses the concept of race as an axis of difference to justify its increasing isolation from a constructed Outside. According to her this isolation seems to function in two different directions. Within the European borders, a hierarchical discourse produces a fault line inside the queer community, a fault line which separates LGBTQ persons who do not have their origins in the enlightened West and makes them invisible (cf El Tayeb 2003: 133 et seq.). As a matter of fact this phenomenon is not only criticised within academia and activist circles, its manifestation can as well be noticed in public political statements. You will probably remember the Norwegian governments recent suggestion of using films depicting lesbian and gay relationships to demonstrate to newly arrived asylum seekers that in Europe homosexuality is completely normal. People who want to live in Norway and want to become part of its society have to accept this, a refugee instructor reportedly said. In this context it is very telling that the only ones voicing their criticism in connection with this approach were conservative Christians (Austrian Press Agency, February 2nd 2011). Apparently queer refugees seem to be in existent in the Norwegian governments concept and public demands to make them visible failed to appear. As briefly mentioned in the beginning this issue was only recently picked up by Jin Haritaworn, who ascertained a discursive displacement: The sign of diversity, in this discussion, moves from the racialized body (who becomes the 'migrant homophobe') to the sexualized one (who becomes the 'injured homosexual' in need of protection from the 'migrant homophobe'). (Haritaworn 2010: 138) The Norwegian concept corresponds to such a discursive staging of a system which wants to protect LGBTQ persons (who have silently been framed as European) as part of bourgeois normality by starting out with explaining to homophobic migrants what homosexuality is about. Outside of Europe, on the other hand, this isolation manifests itself as can easily be noticed both in restrictive politics concerning foreigners and asylum seekers as well as in the increasingly massive walls constructed around the Europe (cf El Tayeb 2003: 133 et seq.). In Austria alone the law relating to foreigners and asylum seekers has been amended 15 times in the last 10 years. Almost every single amendment has worsened the legal position of Non-EU citizens.

Queer Family Reunification under Asylum Law As a matter of fact, the passing of the RPA also affected one of these amendments. Corresponding to EU legislation - namely directive 2003/86/EG on family reunification - persons who have been

granted asylum in Austria are entitled to get their family to join them, something which is supposed to apply for LGBTQ refugees as well, since the RPA was launched. This process of family reunification is known as family proceedings (paragraphs 2, 34, 35 Austrian Asylum Law). In cases where a person belonging to the personal environment of a refugee or subsidiary protected qualifies as a family member under Austrian Law, it is enough to prove this membership in the course of the proceedings, allowing this person the right to recognition as a refugee or as a person granted subsidiary protection as well. What makes this regulation special is that a corresponding application can be put in both in Austria and in any Austrian embassy all over the world. This is the only remaining regular case where an entry permit into Austria can be obtained under Asylum Law. All other refugees are forced to depend on escape agents and on illegalized migration in order to get over Europes border fences and walls. Concerning the question of how the family reunification in cases of queer refugees is supposed to work the legislator remained elliptical and only remarked tersely: Regarding the designated introduction of the institution of registered partnership for same-sex couples into Austrian Law effected by the passing of a Federal Law covering registered partnership (RPA), the Asylum Law of 2005 has to be adapted insofar as all special clauses in Asylum Law that have been standardized for spouses in the future also have to apply to registered partners. [...] Paragraph 2, section 1, line 22 of the current version states that the capacity of family membership for spouses is only existent if this membership, i.e. the marriage, has already existed in the country of origin. The same is henceforth of course applicable to registered partners. Thus, the registered partnership must have already existed in the country of origin. The crux of this passage lies in this last sentence. This means that the family member has to fulfill two requirements in order to be recognized as such: He_she must be in a registered partnership for same-sex couples with the person recognized as a refugee, and this partnership must have already been recognized in their country of origin. As it is probably well known that 76 countries still criminalize same-sex acts between consenting adults - including the five that punish these acts by death (ILGA 2011: 4), let me just illustrate the problem by quoting a decision of the Austrian Asylum Court: In his village in Afghanistan the appellant maintained a homosexual relationship with a man who he had lived with for about 6 months. After the relationship had been discovered, a group of men from the village attacked the appellant and his partner. In the course of this attack, the appellant was gravely injured and his partner was killed. Following this event, the appellant then left Afghanistan in the tenth or eleventh month of the year 2002, stated the Court in March 2010 and recognized the appellant as a refugee (AsylGH, C10 2578540/2008/6E of 10/3/2010).

If his partner had survived and had put in an application for family unification following the courts positive ruling, he would have needed an Afghan document proving that the partnership was registered. Such proof, however, is unknown to Afghan law. On the contrary 'homosexual conduct' is punishable by long imprisonment, as well as it constitutes a Hudood crime punishable by death under Sharia law. In the light of strong societal taboos as well as criminalization UNHCR considers LGBTQ people in Afghanistan at risk on account of their membership of a particular social group, i.e. their sexual orientation and/or gender identity, since they do not, or are perceived not to conform to prevailing legal, religious and social norms. (UNHCR 2010: 29)

In Austrian legal discourse, legal norms that are never applied are known as idle legislation. In my opinion, the RPA and the subsequent amendment of Asylum Law for LGBTQ refugees has created exactly such a case. On the other hand it is absolutely not unusual that - when it comes to Austrian Immigration and Asylum law - a view to EU legislation is able to improve the legal position of the affected. Yet, briefly speaking, this is not the case here. In Article 4 the Council Directive 2003/86/EG of 22 September 2003 on the right to family reunification defines family members basically as spouses and minor children, thereby reproducing the traditional heterosexist image of the so called 'nuclear family'. When it comes to same-sex couples it is up to the Member States whether they authorise the entry of stable long term partners or treat registered partners equally as spouses.

At the Intersection of Sexuality and Race Returning to the question, which legal mechanisms we implicitly serve, when we turn to a Politics of Rights, let me incidentally refer to Kimberl Crenshaw who, in her development of the concept of intersectionality, has dealt with the marginalization of Black women in legal discourse: I want to suggest further that this single-axis framework erases Black women in the conceptualization, identification and remediation of race and sex discrimination by limiting inquiry to the experiences of otherwise-privileged members of the group. In other words, in race discrimination cases, discrimination tends to be viewed in terms of sex- or class-privileged Blacks; in sex discrimination cases, the focus is on race- and class-privileged women. (Crenshaw 1989: 140) By single axis framework Crenshaw refers to the US-American anti-discrimination laws in effect at the end of the 1980s and I am of the opinion that we are confronted with a similar problem in the case of the concept of family used in Austrian Asylum Law nowadays: The RPA was written for EU-citizens, who are in a same-sex relationship and have thus been integrated into bourgeois

normality. The passage on family unification in Austrian Asylum Law, on the other hand, was written for refugees, who are insofar privileged in their country of origin as they are usually able to get their heterosexual two-person relationships recognized there. The reality of life of LGBTQ refugees does not fit into this logic. Neither the legal recognition of their relationships nor Asylum Laws mechanisms of legal protection are available to them, as they both as LGBTQ people and as refugees do not conform to the privileged subject status used as a frame of reference by European legal systems (i.e. heterosexual EU-citizens). Regarding the invisibility of LGBTQ people, who do not have their origin in the West, I dare say that the family reunification under Austrian Asylum law does offer an example for the legal manifestation of this discursive phenomenon. When the Austrian legislator is of the opinion that the same [the requirement for an already legally recognized partnership, n.b.] is henceforth of course applicable to registered partners, he basically marginalizes the reality of life as experienced by LGBTQ refugees almost like the Norwegian government did in the above given example.

Legal Perspectives Facing these mechanisms of exclusion my contribution finally leads me to the recurrently raised question, if law is a suitable partner in the strike for equality at all and I feel the need to state that I do not mean to condemn a queer Politics of Rights. Rather, I suggest questioning its homebase. If we did not accept the logic of exclusion without contradiction and refused to think of LGBTQ refugees as the 'others', we could not celebrate successes in the area of equality such as the adoption of the RPA without contradiction from an anti-racist standpoint. We could not afford to overlook questions such as 'What does the RPA entail for refugees belonging to the queer community?' And especially we as lawyers would under these conditions be permanently required to scrutinize legal mechanisms of exclusion and develop legal strategies to overcome them. When it comes to the family reunification of same-sex couples under Austrian Asylum law I see such a possibility in a focus on the European Convention on Human Rights (ECHR): For decades the European Court of Human Rights had considered same sex relationships to fall into the notion of 'private', but not into the notion of 'family' life in accordance with Article 8 of the European ECHR. The ruling in the case Schalk and Kopf against Austria (ECHR, 24.06.2010, 30141/04) recently overruled the Court's case law as it stood: In view of this evolution the Court considers it artificial to maintain the view that, in

contrast to a different-sex couple, a same-sex couple cannot enjoy family life for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of family life, just as the relationship of a different-sex couple in the same situation would. (Note 94) As a consequence particular rights that were established with reference to the right to respect for family life are accessible for same-sex couples now as well. From the viewpoint of LGBTQ refugees I consider the case of Zen vs the Netherlands (ECHR, 21. 12. 2001, 31465/96) of particular interest in this context. In this ruling the court ascertained that in exceptional cases a Member State's obligation to grant an entry permit can be derived from the right to respect for family life in accordance with Article 8 ECHR. The question is whether the Austrian family reunification regulations violate the principle of equal treatment in accordance with Article 14 ECHR, now that it is applicable in combination with the "respect for family life" branch of Article 8 ECHR: In the light of the widespread persecution of LGBTQ people I consider it disproportionally more difficult for same-sex couples to fulfill the legal requirement to prove the legal recognition of the partnership in the country of origin than it is for heterosexual ons. In the end it remains to be seen, if the Court is of the opinion that family reunification under Austrian Asylum Law constitutes an unjustified equal treatment of unequal circumstances (ECHR, 06.04.2000, 34369/97) the latest judicial developments at least suggest such a violation of Article 14 taken into conjunction with Article 8 ECHR. References
Bruce-Jones, Eddie/Paoli Itaborahy, Lucas. 2011. State Sponsored Homophobia. A world survey of laws criminalising same-sex sexual acts between consenting adults, ILGA. Available at: http://old.ilga.org/Statehomophobia/ILGA_State_Sponsored_Homophobia_2011.pdf [accessed 2011/08/19) El-Tayeb, Fatima. 2003.Begrenzte Horizonte. Queer Identity in der Festung Europa, in: Steyerl, Hito/Gutirrez Rodriguez, Encarnacion. (Hg.) Spricht die Subalterne Deutsch? Migration und postkoloniale Kritik, Mnster: UNRAST Verlag: 129-146. Haritaworn, Jin. 2010. Wounded Subjects: Sexual Exceptionalism and the Moral Panic on Migrant Homophobia in Germany, in: Gutirrez Rodriguez, Encarnacion ua. (Hg) Decolonizing European Sociology: Transdisciplinary Approaches, Farnham: Asghate: 135-151. Hark, Sabine. 2000. Durchquerung des Rechts. Paradoxien einer Politik der Rechte, in: quaestio (Hg.) Queering Demokratie [sexuelle politiken], Berlin: Querverlag GmbH: 28-45. Markom, Christa/Rssl, Ines. 2010. Sexuelle Minderheiten und ethnisch minorisierte Gruppen: Zugehrigkeit, Intersektionalitt und Exit, in: Strasser, Sabine/Holzleithner, Elisabeth: Multikulturalismus queer gelesen. Campus Verlag: Frankfurt am Main: 321-342.

Puar, Jasbir. 2007. Terrorist Assemblages. Homonationalism in Queer Times, Duke University Press. UN High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, 17 December 2010, HCR/EG/AFG/10/04, Available at: www.unhcr.org/refworld/docid/4d0b55c92.html [accessed 2011/08/19]