United States: Ninth Circuit Court Rules on Lesbian Asylum Case

Today the Ninth Circuit Court of Appeals published its ruling in Pitcherskaia v. INS, the first asylum case regarding persecution based on sexual orientation to reach the federal court level in the United States. Alla Pitcherskaia, a Russian lesbian seeking asylum based on persecution due to her sexual orientation, was appealing a ruling by a split, 3-judge Board of Immigration Appeals panel in November 1995 that she had failed to demonstrate a well-founded fear of persecution, despite the fact that she had been threatened with psychiatric institutionalization and had faced constant police arrest and harassment as well as expulsion from school and work.

In particular, the decision under appeal held that forced psychiatric treatment -- including electroshock therapy -- did not constitute persecution because the Russian government had "good intentions": forcing a lesbian to become heterosexual. In a unanimous decision, the Ninth Circuit Court of Appeals debunked that reasoning, by stating that "Human rights laws cannot be sidestepped by simply couching actions that torture mentally or physically in benevolent terms such as 'curing' or 'treating' the victims." And more succinctly, the Court stated that "Persecution by any other name remains persecution." Having settled this issue, the Court remanded the case for reconsideration to the Board of Immigration Appeals.

According to Sydney Levy, Program Director of the International Gay and Lesbian Human Rights Commission (IGLHRC), "Today's Court ruling brings a measure of sanity to this case. It is just common sense that persecution is persecution, no matter your intentions." Since 1995, ten Russian asylum seekers have been granted asylum in the United States due to persecution or a well-founded fear of persecution on account of their sexual orientation. Additional asylum cases from Russia have been granted in Canada and Australia, among others.