According to a report from Pink News, Europe’s Largest Gay News Service, the Czech Republic uses a test to determine whether asylum seekers are really gay.  The test involves a cleverly-named device known as a “phallometer,” which measures arousal.  The theory is that if a man (the test only works for people with phalluses) who claims to be gay becomes aroused while watching heterosexual pornography, then he is not really gay.  Yes, this is about as dumb as it sounds.

Although testing erections seems ridiculous, the problem of asylum seekers lying to obtain status is well known.  Certainly some asylum seekers falsely claim to be gay in order to win their cases.  I had a case once of a Russian woman who falsely claimed to be a lesbian.  Her case was denied by the Asylum Office, and she hired me to represent her in Immigration Court, where she was filing for adjustment of status based on her marriage (to a man).  We admitted that she lied on her asylum application and she applied for a waiver, which was granted.

It is not easy to detect false asylum claims, particularly when the claim involves delving into personal details, such as sexual orientation.  In cases I have worked on involving persecution based on sexual orientation, we submitted letters from friends and family attesting to the alien’s sexuality.  This has generally been sufficient for DHS, and they normally stipulate that the alien is gay.  Such an approach saves the alien (and everyone involved) the need to delve into personal details that can be embarrassing and humiliating for the asylum seeker, and is more consistent with international human rights law, which prohibits inhuman or degrading treatment.

Cases where the asylum seeker does not have anyone to attest to his orientation are more problematic.  An alien’s credible testimony alone could be sufficient to support a finding that the alien is gay.  Perhaps if the alien seeks counseling for past persecution or discrimination, the care-giver could attest to his sexual orientation.  In some cases, courts might accept a lie detector test–at least it is less intrusive than a phallometer.

As for the Czech Republic, the European Union Agency for Fundamental Rights states that phallometric testing violates international human rights laws, which prohibit torture and inhumane or degrading treatment, and is particularly inappropriate for asylum seekers because they “might have suffered abuse due to their sexual orientation and are thus specifically constrained by this kind of exposure.”

Such a test seems degrading and insulting, not to mention completely useless for revealing a person’s sexual orientation.  Hopefully, now that the practice has come to light, it will be discontinued.

Special thanks to David Cleveland for alerting us to this issue.