The Right of Lesbians and Gay Men to Live Freely, Openly and on Equal Terms is Not Bad Law: A Reply to Hathaway and Pobjoy

New York University School of Law
Publication Type:
Journal Article
New York University Journal of International Law and Politics, 2012, 44 (2), pp. 497 - 527
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I address Hathaway and Pobjoys critique in this special issue of the decisions of the High Court of Australia and Supreme Court of the United Kingdom, respectively, in s395 and HJ and HT . These cases represent the two highest level judicial determinations in the world to address gay refugee claims to date. While neither decision is beyond criticism, the cases both separately and together advance the development of refugee jurisprudence on sexuality in major ways. These decisions emphatically reject discretion reasoning, affirm that the experience of sexual orientation extends beyond mere private sexual conduct, and articulate the importance of equalityâ- âboth as between gay and straight people in the country of origin and between sexuality claims and other categories of claimants in the receiving country -â in applying the protections of refugee law. I examine the harm of discretion reasoning, and critique Hathaway and Pobjoyâs claims as resting upon a misleading and unsustainable act/identity distinction (comprising equally unsustainable binaries of integral/peripheral and necessary/voluntary acts). Next, I demonstrate through analysis of previous jurisprudential developments in the UK that Hathaway and Pobjoyâs proposed test of limiting protection only to activities ââ'reasonably required'â to express sexual orientation is highly susceptible to misapplication in practice.
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