Aaron Ponce, ‘Shoring up Judicial Awareness: LGBT Refugees and the Recognition of Social Categories’, 2012 New England Journal of International and Comparative Law, Volume 18, pp 185-204

Abstract

The advancement of lesbian, gay, bisexual, and transgender (LGBT) rights has generally been more extensive in the European Union and its member states than the development of similar rights in the United States. This comment argues that asylum laws and jurisprudence affecting LGBT refugees in the United Kingdom reflect that country’s recognition of certain sociological categories involved in LGBT cases that corresponding U.S. cases have not considered. The sociological categories significant in LGBT cases include distinctions between sexual conduct and sexual identity as well as those between biological sex and gender. Depending on the level of sociological awareness, asylum laws can either reflect the true social realities of LGBT individuals or serve as legal mechanisms that perpetuate discrimination- possibly causing discrimination instead of preventing it. This comment predicts that the advancement of laws favourable to LGBT individuals has and will continue to progress at a greater rate in the U.K. than analogous laws in the U.S. because of a more comprehensive awareness of the sociological complexities inherent in LGBT issues. This in turn will lead to increased judicial consistency and predictability of the law.