Gay US soldier may get refugee protection

Cristin Schmitz for The Lawyers Weekly

December 4, 2009

A United States Army deserter is entitled to have her refugee claim redetermined in light of evidence that the U.S. military discriminates against its homosexual personnel, a Federal Court judge has ruled.

Alluding to the U.S. Army's controversial "Don't Ask, Don't Tell, Don't Act" policy - which bans gay and lesbian soldiers from having sex or being open about their sexual orientation - Justice Yves de Montigny held Nov. 20 that "being compelled to forsake or conceal one's sexual orientation and gender identity, where instigated and condoned by the state, may amount to persecution" sufficient to attract refugee status in Canada.

The judge went on to sharply criticize Immigration and Refugee Board (IRB) member William Davis's reasons for rejecting last February Bethany Smith's claims that, as a lesbian, she fears persecution from her fellow soldiers and military superiors, and anti-gay bias within the U.S. military justice system, if she is deported to face possible court martial.

"The board member appeared, at times, to have focused on the applicant's status as a conscientious objector," observed Justice de Montigny, but "the heart of the applicant's claim is that she is a lesbian member of the U.S. Army who was harassed and threatened at the same base where a gay member of the Army was beaten to death, and who feels she could not rely on her superiors to secure protection. She fears that she could be punished for leaving an environment where her life is in danger."

The judge said unpunished acts of physical, sexual and verbal abuse and discrimination against gays and lesbians may form the basis of a refugee claim. He held that Davis's decision to reject Smith's claim on the basis that the United States can adequately protect her from any persecution she might encounter in the military was unreasonable given that he failed to properly assess and weigh expert and other evidence Smith presented about homophobia in the army, and about her failed attempt to seek protection from the chain of command.

The judge also suggested that the effective ban on homosexual sexual relations in the U.S.'s Uniform Code of Military Justice "is in conflict with a fundamental human right, and therefore adversely differentiates on a [Refugee] Convention ground in its application."

Smith's counsel, Jamie Liew of Ottawa's Galldin Liew, told The Lawyers Weekly that so far as she knows, the decision is the first to recognize that anti-gay bias in the U.S. military may found a refugee claim in Canada.

If Smith wins her case, similar refugee claims may follow, Liew said.

She suggested too that the prospect of an American ex-soldier getting refugee status in Canada because of the U.S. military's failure to protect gays and lesbians may add impetus to President Barack Obama's election pledge to scrap the widely condemned "Don't Ask, Don't Tell" policy.

"I hope it does create a lot of dialogue there because something has got to change," observed Liew. "It's amazing that [the United States] purport to promote certain ideals, such as freedom and human rights, all around the world, yet they have within their own military a space that is not safe for gays and lesbians."

In order to qualify as a Convention refugee or as "a person in need of protection," Smith must demonstrate she faces "persecution," as well as provide clear and convincing proof of the inability or unwillingness of the United States to protect her from persecution.

The 21-year-old now lives in Ottawa where she works at a call centre. In 2007, she was the only female mechanic in the motor pool at the U.S. Army base in Fort Campbell, Kentucky, where a decade ago a gay soldier was beaten to death in his bed with a baseball bat.

Smith claims she was harassed and insulted by other soldiers because she "looked like a lesbian." She said the situation worsened when she was seen holding hands with a woman and, when her superiors became aware of her sexual orientation, they started treating her more harshly, including giving her assignments incompatible with a medical condition she had.

Smith claims to have received hundreds of handwritten notes posted on her barracks door threatening to beat her, as well as a threat to murder her in her sleep. She said she tried to obtain a military discharge by telling her sergeant that she was a lesbian, but he ordered her not to repeat her disclosure to higher-ranking officers. Smith says she feared that she would be killed. After she fled to Canada in 2007, she says she received an anonymous call from the base threatening to "kick a hole in her face" if she ever returned there.

If she is deported back to the U.S., Smith faces possible charges of being absent without leave (AWOL), desertion to avoid hazardous duty and committing an "indecent act," i.e. engaging in "homosexual behaviour" contrary to the Uniform Code of Military Justice.

The IRB concluded that Smith did not have a justified fear of persecution based on her sexual orientation and that, even if she did, she did not show that the United States would fail to protect her.

But Justice de Montigny said "the applicant provided evidence to the Board that the punishment she would be exposed to under the court martial process relates to a breach of a law that is in conflict with a fundamental human right and therefore adversely differentiates on a Convention ground [sexual orientation] its application."

Moreover, the board member was not entitled to "ignore the evidence suggesting unequal treatment for homosexuals before court-martials, both in the exercise of the discretion to prosecute and in sentencing," the judge said.

Similarly, there was evidence both in the documentation before the board member and in the affidavit submitted by Smith's expert on military justice to the effect that U.S. military judges are not independent as they are part of the chain of command and depend upon superior officers for promotions and subsequent assignments; convening authorities determine whether a member of the military will be prosecuted and select potential jurors; and there is no uniform or consistent method by which sentences are imposed on military personnel convicted of AWOL, or desertion.

Justice de Montigny said some of these assertions appear to contradict findings in prior cases involving U.S. soldiers claiming refugee status on conscientious objector grounds. However, the Smith case is about alleged discrimination based on sexual orientation, and it was incumbent on the board member "to assess the fairness of the court martial process in the light of the particular set of facts and the evidence that was before him."

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