Sexuality, Gender and International Law

Quiz
Question 1
Mutua is a 20 year old male from Kitui, a small country in central Africa. Three months ago, he
entered the USA on a 30-day tourist visa. At the end of the 30-day period, he filed a request for
asylum in with the Immigration Board in New York City. As part of the asylum process, he had
two interviews with the Asylum Board. He did not have a lawyer during these interviews, though
an interpreter was provided because he is not completely fluent in English (his native language is
Kikamba). The final hearing with the Asylum Board is next week, and a local NGO has asked
you to represent him (and you agreed).
Kitui is a conservative Christian countryin fact, Christianity is the official state religion. Most
of the country is deeply religious, and take their morality from a literal interpretation of the
Bible. This includes a strong disapproval of homosexuality and gender non-conforming behavior.
Section 277 of the Penal Code states that Sodomy shall be punishable by up to 10 years in
prison, but this section is not enforcedthere are no records of arrests or convictions under this
law in the past 30 years. In fact, the Kitui Chief of Police has stated publicly that police will not
enforce this law because it is an invasion of privacy.
During the initial interview with Asylum Board, Mutua explained as follows: He said that if he
went back to Kitui, he would face problems because he is different. The interviewer asked
what he meant by different, and Mutua explained that he is likes men. The interviewer asked
Mutua if he was gay, but Mutua said no. The interviewer asked if he was bisexual or transgender,
and Mutua again said no. Mutua also stated that he had never been in a relationship with a man
or been physically intimate with a man. Kitui has a small but growing LGBT community, but
Mutua was not involved with it and was unable to name LGBT NGOs or groups in the country.
Mutuas family is from a small village in rural Kitui. The village is simpleno electricity or cell
phone serviceand is also very conservative. Mutuas family knows he is different because he
has feminine mannerisms and they have caught him checking out men. His family treats him
poorly because of this (he was still living with his parents). His parents were constantly talking
about how they would make him get married to a woman, and that if he refused, they would kick
him out of the house. They also once took him to a psychiatrist to fix him. The psychiatrist
prescribed some medication, which he took for a few weeks but nothing changed.
Many of the people in the village are aware that Mutua is different. Some people refuse to
speak with him, and a few local shops have even started refusing to let him come inside to
purchase things, saying that they dont want sinners in their shops. None of the local churches
will let him come to their religious ceremonies. Because of all this, Mutua rarely leaves his
house. Mutua is also a bit worried about the Wazungu Sect, an ultra-conservative (and sometimes
violent) Christian group that has publicly punished people who violate the Bibles teachings. For
example, they forced a boy and girl who allegedly had sex before marriage to walk naked
through the village, and there are rumors that they raped a lesbian girl in a distant village to
make her normal. Police have done nothing to investigate either of these cases. There have also
been a few (but just a few) reports that police have arrested gay men for no reason in the cities.

Up until 2014, Mutua had been working as a Maths teacher in the local secondary school for
three years, but the principal fired him after several parents complained that they dont want him
working with their children. He doesnt think anyone else in the village will hire him, so he has
not looked for other jobs.
Mutua has considered moving to the capital city of Kativani, where LGBT people can live safely
without much problem. However, the city is expensive and he has no savings to rent an
apartment. Also, Kativani is in a different province, and it is almost impossible to get a good job
there without speaking the local language Kikuyu, which Mutua doesnt speak at all.
During the second interview with the Asylum Board, Mutua repeated much of the same details
but also said that he was a teacher up until 2013 (not 2014 like he stated in the first interview).
As Mutuas lawyer, what arguments will you make regarding why he qualifies for asylum? You
should also address any potential weaknesses in his case (that is, bring up any reasons he might
be denied asylum and argue against them).
Question 2
When should we accept culture as a valid reason for a state not meeting the standards set forth in
the ICCPR, ICESCR, CAT, and other international treaties? When should we not accept culture
as a reason? Discuss this in detail.