On the Government of Bisexual Bodies. Asylum Case Law and the Biopolitics of Bisexual Erasure

Research into asylum case law in many countries (including the USA, Canada, Australia, New Zealand and the UK) suggests that bisexuals are at serious risk of having their claims dismissed, because their stories and identities are cast as non-plausible or non-consequential. The legal claims of non-heterosexual applicants have been meet with ignorance and excessive scrutiny in the legal apparatus of many countries for a very long time. While positive case decisions of gay male and lesbian claimants are increasing in some jurisdictions, bisexuals are still likely to find their claims on the grounds of persecution because of their sexuality rejected. While the “discretion requirement”, i.e. the expectation that lesbian, gay, bisexual or trans* applicants have to live “discrete” lives (or, in other words, to “stay in the closet”) to prevent persecution, has been successfully challenged in many jurisdictions, bisexuals are still alleged to being able to “pass” without hassle, if they only entered heterosexual relations. Bisexual claimants often find it impossible to prove their membership in a ‘particular social group’. The fluidity bound up with bisexuality and the lack of acceptance for bisexual identities is at odds with the ‘immutability’ assumption of sexual orientation models. The common discrimination of bisexuals in asylum law is a direct outflow of what Kenji Yoshino calls the ‘epistemic contract of bisexual erasure’. The hurdles against making bisexual experience intelligible in the field of law and against materialising a right for asylum for bisexual claimants is part and parcel of the regulation of the sexuality of migrants’ bodies through biopolitical acts of government with all too often necropolitical consequences.