An exploration into asylum claims on the basis of persecution due to bisexual orientation in the Netherlands
*Disclaimer 1: This is a blog post version of my BA thesis research. This research is merely explorative and none of the outcomes of the research can be seen as conclusive and generalisable. The research results have been summarized for this post. You can find the full research paper here, and a recording of a presentation of the research here (24:20 - 42:30).*
*Disclaimer 2: bisexuality is used in this blog post as an umbrella term for the attraction to more than one gender. Therefore, it might also include people who identify as pansexual, queer, or other types of identities.*
“It is my reality and I just need to be clear and honest about my reality.”
This is the approach that one of the bisexual asylum claimants I interviewed for my thesis research took regarding his asylum application.
However, not everyone feels this way: there are indications that bisexuals regularly decide to claim asylum as a lesbian or homosexual instead, and research in Canada and the United States showed that the granting rates of asylum claims on the basis of bisexuality may be lower than that for lesbians or homosexuals.
On the basis of these findings, I decided to explore the current challenges that bisexual asylum claimants in the Netherlands face in obtaining a refugee status.
The discussion of bisexual asylum claims goes to the heart of existing narratives on bisexuals’ position within the LGBTQI+ community – after all, no matter how flawed the decision-making process may be, the assessment of an LGBTQI+ asylum claim is one of the most rigid existing frameworks used to determine whether someone is part of the LGBTQI+ community or not.
In the case of bisexuals, this is a question that has caused controversy over time – and still does.
Bisexuals are perceived as different from the traditional images of ‘homosexuality’ which display mainly gay and lesbian identities. They have long had relatively little visibility in the LGBTQI+ community. The problems faced by the bisexual community are addressed in Kenji Yoshino’s theory of bisexual erasure.
The argument of professor Yoshino is approximately as follows: both homosexual and heterosexual groups have an interest in ignoring bisexuality for several reasons, all of which are rooted in a view of sexuality as fixed (unchangeable) and binary(heterosexual or homosexual).
Bisexuality would threaten the position of these groups by not conforming to the monosexual standard upheld by each . The theory states that because of this perceived threat, homosexual and heterosexual groups (in general terms) try to erase bisexuality.
This is mainly done in three ways: class erasure, individual erasure, and delegitimation.
Class erasure entails the implicit or explicit argument that bisexuality does not exist at all, or if it does, that it is not a relevant sexual orientation.
Individual erasure is a situation where the category of bisexuals is presumed to be true but someone’s own identity as a bisexual is questioned, exemplified by the often-used ‘it’s a phase’ argument.
Delegitimation is the process in which negative attributes are associated with bisexuality. These negative attributes could include promiscuity, a lack of courage to come out as ‘fully gay’, or hypocrisy in trying to benefit from heterosexual privilege while also enjoying the possibility of same-sex desire.
Considering the previously mentioned signs that there may be some additional obstacles for bisexual asylum claimants to obtain asylum, I decided to apply the theory of bisexual erasure to the Dutch asylum context.
For this research, I analysed interviews with several bisexual claimants, LGBTQI+ asylum lawyers and NGO workers, as well as twenty-two published court cases on asylum claims by bisexuals. I then identified common themes in these texts.
The research question posed was:
‘What are the current challenges in the Netherlands to the granting of refugee status for asylum seekers who base their claim on persecution due to their bisexual orientation?’.
On the claimant’s side
The analysis of court cases and interview transcripts indicated several common themes.
One often-mentioned problem on the side of the asylum claimant was that they were given the advice, either by their lawyer or by other asylum claimants who finished their procedure, to ‘go gay’ – so to claim asylum as a lesbian or homosexual instead.
If a bisexual asylum seeker takes this advice, it could be detrimental to their claim, because, as one of the interviewees explained:
“if they don’t tell the whole story then you get the situation that the immigration service notices that someone is a bit more closed, or is leaving out parts of the story. That can come across as deceitful, even though it was not meant that way”.
Additionally, ‘going gay’ could interfere with the claimant’s possibility for opposite-sex relationships, and force them to hide their identity as a bisexual.
An additional recurring theme for the claimants was a fear that the immigration service might apply the so-called ‘discretion argument’ to their case.
This is the argument that, if someone could avoid persecution by being discreet about their orientation, they can be sent back to their country of origin. As bisexual people would theoretically have the option of pursuing only opposite-sex relationships, many bisexual asylum claimants were afraid that this argument would be applied to their case.
In Dutch asylum practice, it is not permitted to return an LGBTQI+ asylum claimant on the basis of a discretion argument, and no actual use of this argument was found in the research. However, the fear of the use of this argument among bisexual asylum claimants may nevertheless push them to ‘go gay’ in their asylum application .
On the immigration service’s side
A first theme relating to bisexual erasure that was found in the practices of the Dutch immigration service was that they were considered to have a general bias against bisexual asylum claims. This was perceived to include a reluctance to grant asylum on the basis of bisexuality, and a general attitude of disbelief towards bisexuals.
One interviewee had his claim rejected several times, only to receive a positive decision when he changed his claim from ‘bisexual’ to ‘homosexual’. He stated:
“This was the important point, they just wanted to change this [changing the bisexuality to homosexuality]. They didn’t tell me, but they wanted to hear this change from me.”
This could be seen as a practice of bisexual erasure, namely individual erasure.
A second finding was the fact that bisexual asylum claimants sometimes get noted down as being homosexual. One interviewee had to correct this in his interview report. This could be seen as an instance of class erasure. In court cases, too, claimants were often described as ‘homosexual or bisexual’, omitting an important distinction.
Thirdly, the results indicated that the immigration service may hold views of sexuality as fixed, in the sense that it cannot change over time.
This static view of sexuality was evident in questions from the immigration service on ‘how much percent’ a claimant liked men and women, with the expectation that the answer would be consistent over time.
Perceived elements of fluidity in the claimant’s sexual orientation could mean the immigration service might find their claim less credible . However, taking into account perspectives from queer theory, it can be argued that sexual orientation is not stable at all, and that levels of attraction or desire towards different genders may fluctuate.
In that view, the use of a static definition of sexuality in asylum procedures could be problematic for bisexual asylum claimants.
Finally, it was indicated by several interviewees that the immigration service may perceive a lack of persecution of bisexuals in the country of origin, even though in reality the level of persecution may be the same. One of the interviewees explained:
“When I came here, the problem was: in our country, if you’re bisexual or homosexual, the people view it as the same. There’s no ‘discount’ for bisexuals. But here they think it is normal.”
Assuming that bisexuals can benefit from heterosexual privilege and thus avoid persecution can be seen as a type of delegitimation of bisexuality and the problems bisexuals face.
As stated at the beginning, this research was not expansive enough to draw any generalisable conclusions. However, it does indicate what problems may exist in bisexual asylum procedures. The finding that bisexual asylum claimants are sometimes given the (unofficial) advice to claim asylum as a lesbian or homosexual instead, because claiming asylum as a bisexual would be ‘too difficult’, raises the question whether that added difficulty is actually present.
Signs of bisexual erasure in asylum procedures are worrying, but not surprising. In an asylum system (and a world) that revolves around neatly divided groups of people, ‘yes or no’ conclusions and unchangeable stories, those who do not fit into the established categories are bound to be left out.
This makes it even more important to research such groups. Asylum procedures are decision-making processes that determine a person’s future. If bisexual asylum claimants face additional obstacles in their procedure because of their identity – as my research findings indicate - then this should be assessed and addressed as soon as possible. Because everyone, especially in an asylum claim, should be able to be clear and honest about their reality.
Sofia D’Arcio is a human rights graduate from University College Maastricht who specialises in women’s rights, LGBTQI+ rights, and migration. She is currently interning at the Dutch Refugee Council, where she monitors legal developments in Dutch and international asylum practice related to LGBTQI+ asylum applicants, female asylum applicants, and religious converts. She also interns for the Senate fraction of the Dutch Green Left party, where she analyses legal proposals on (among others) the topic of migration and equality.
Notes:  Sean Rehaag, ‘Bisexuals need not apply: a comparative appraisal of refugee law and policy in Canada’, the United States, and Australia’ (2009), 13(2) The International Journal of Human Rights 415, 417; Jaclyn Gross, ‘Neither Here Nor There: The Bisexual Struggle for American Asylum’ (2017), 69 Hastings Law Journal 985, 999.  Kenji Yoshino, ‘The Epistemic Contract of Bisexual Erasure’ (2000) 52 Stanford Law Review 353, 369.  Yoshino describes the ‘investments’ of heterosexual groups and homosexual groups in the erasure of bisexuality as falling into three categories: an interest in the stabilisation of sexuality/sexual orientation, an interest in the stabilisation of the primacy of sex and an interest in the stabilisation of monogamy. For a more detailed explanation, see Yoshino (n 2) 391.  ibid 395.  ibid  Ibid 396.  Ibid 399.