Proving Visible Sexualities: An Analysis of the Social Visible Requirement

• In Event: 090 - Section on Sociology of Sexualities Roundtable Session (one-hour).
  In Refereed Roundtable: Table 09. Sexual Identities

Abstract

The U.S. federal government will grant asylum to individuals from other countries if they can prove that they have a well-founded fear of persecution on account of a protected status, including race, ethnicity, religion, political opinion, or membership in a particular social group. A sizable number of lesbian, gay, bisexual, transgender (LGBT) applicants have made the case that their sexual orientation constitutes a particular social group. Historically, proving membership became an exercise in showing the courts that the applicant was “gay enough,” relying on the extent to which an applicant was gender nonconforming. While the U.S. has deemed this type of stereotypical thinking impermissible, legal scholars are concerned about the rising prevalence of the “social visibility requirement,” or the requirement that applicants must prove both that their particular social group is visible in their country of origin and that they are an identifiable member of this group.

In this paper, I assess the concerns around the social visibility requirement by analyzing the existing precedents in sexual orientation cases. Using my original data set of all published case decisions of sexual orientation asylum, I determine if a precedent exists for social visibility and analyze the consequences for individuals making these types of claims. In addition to revealing basic patterns between the visibility requirement and case outcome, I show the specific mechanisms by which visibility operates in these cases. Ultimately, I conclude that the visibility requirement presents the possibility of a reversion to the stereotypical thinking already overturned by the circuit courts.

Author

• Cheryl Llewellyn, State University of New York-Stony Brook