A Monitoring Guide
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Monitoring bodies should also be aware that the process of determining refugee status in relation to persecution based on the applicant’s sexual orientation or gender identity can in itself lead to humiliating practices or cruel, inhuman or degrading treatment. The
requirement of proving one’s sexual orientation or gender identity
is often accompanied by a culture of disbelief on the part of the
national authorities charged with conducting the assessment, and
the way the assessment is conducted may be inherently humiliating.
Detailed questions about the applicant’s sexual practices or tests to
prove his or her sexual orientation should be prohibited. Similarly,
the production of “evidence” such as images or films of applicant’s
intimate acts should never be requested. So-called “phallometric”
tests measuring sexual arousal while watching pornographic material must be considered incompatible with the right to human dignity, the right to be free from inhuman and degrading treatment, and
the right to privacy. There is evidence that adjudicators, in looking
to establish a person’s sexual orientation, may reject accounts of
individuals having same-sex relationships while in detention by asserting that such relationships were the result of a lack of availabile
opposite-sex partners. Bisexual people may also be told that they
can “choose” their sexual orientation in order to be safe.
Safeguards should be in place to ensure that LGBT persons are not
prevented from disclosing their sexual orientation or gender identity during interviews, in particular when this information could
have an impact on the determination of their refugee status. Asylum
claim interviews should always be conducted in private, including at
the registration stage. Furthermore, asylum seekers should be given
the possibility to choose the gender of the interviewer, as well as the
gender and nationality of the interpreters, particularly in countries
The UN Special Rapporteur on the human rights of migrants stressed that “[s]ensitive personal information (regarding for example the identity of the asylum seeker, criminal records, health or sexual
orientation) should not be shared with authorities from countries of origin in order to protect the life,
security and privacy of the persons concerned and their families”, Report of the Special Rapporteur on
the human rights of migrants, A/HRC/38/41, 4 May 2018, para. 36.
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Chapter V
sexual orientation) should not be shared with authorities from these countries, in order to protect their – and their families’ – lives,
security and privacy. In particular, it is essential that sensitive information, including the person’s sexual orientation, is not shared with
the authorities89.
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