Keeping it in the room: health, happiness and living in Berlin
The Court of Justice of the European Union (CJEU) has said that people have the right to define their own sexual orientation, adding that the statement made by asylum claimants on their sexual orientation should always form the starting point of credibility assessment.
In issuing an opinion, Advocate General Sharpston said that nothing can be required of applicants that would undermine their human dignity or personal integrity. The statement follows a number of cases in which applicants were grilled by asylum officers who did not believe them, asking them to ‘prove’ their sexuality.
The Advocate General’s opinion in particular clarifies that the use of medical tests in order to assess a sexual orientation constitutes a violation of the fundamental rights of the asylum seeker. This includes the use of phallometry, which was previously carried out in the Czech Republic and Slovakia, where the physical reaction to pornographic material is measured, as well as the use of other medical and psychological examinations.
The opinion also establishes that intrusive questioning on sexual experiences, or requirements to share photographs and films of sexual practices, as well as assessments based on stereotypes are all contrary to EU law.
Gabi Calleja, Co-Chair of ILGA Europe’s executive board, said: ‘We hope that the Court will follow the opinion to strengthen the laws and practices in the EU on working with LGBT asylum seekers. The opinion is clear that the human dignity and personal integrity of an asylum seeker during the process of verification of their sexual orientation is paramount and central in this process. What we need now is clear guidelines for all EU Member States which helps asylum authorities on how to act with respect and dignity in such cases.’
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