Human Dignity, SOGI Claims, and the Obergefell Decision

Christine M. Venter
is a Teaching Professor at Notre Dame Law School and Affiliated Faculty in Gender Studies at the University of Notre Dame.

It has now been five years since Obergefell, but one thing that even many opponents of the decision on religious freedom grounds might find common ground with, is the language used by Justice Kennedy when referring to the LGBTI+ community. In his opinion, Kennedy focused on the human dignity of the individual and what is required for dignity and full recognition of personhood. Obergefell represents the culmination of the Court’s gay and lesbian rights cases in that regard; previously Lawrence v. Texas, and United States v. Windsor, both established the idea of the centrality of the dignity of the human person. Lawrence mentioned it three times, while Windsor and Obergefell both referred to it ten times.

The Court in Obergefell also held that denying same sex couples the right to marry “diminished[ed] their personhood.” While some may disagree with the ruling on religious grounds, the language of dignity and personhood represents a call to action in other areas where human rights and LGBTI+ activists, as well as religious freedom proponents, can rally around the concept of dignity: namely asylum claims based on persecution on account of Sexual Orientation or Gender Identity (SOGI).

According to multiple human rights groups such as Amnesty International and Human Rights Watch, the LGBTI+ community faces persecution and attacks on their dignity and person in many ways and in many countries around the world. For those reasons, some of those facing such persecution seek asylum in the U.S.

It has now been thirty years since the U.S. Board of Immigration Appeals in Matter of Toboso-Alfonso recognized that identifying as LGBTI+ constitutes “membership in a particular social group,” thus satisfying one of the necessary preconditions for an asylum claim. However, currently those asserting SOGI asylum claims are facing an uphill battle, as recent changes to the application process has placed those claims in jeopardy. Because human dignity is not only the foundation of human rights but also a fundamental precept that most of religions have in common, protecting the human dignity of these vulnerable groups is one area that both supporters and opponents of Obergefell could coalesce around.

On March 20, 2020, in response to the spread of COVID-19, the Centers for Disease Control and Prevention issued an order that purports to prohibit people from Mexico and Canada from crossing into the United States. This ban essentially eliminates the opportunity for asylum seekers and refugees to apply to remain in the United States, even if they are fleeing persecution on a protected ground. The ban is based on a rule issued under the Public Health Service Act, which permits the Surgeon General to suspend the “introduction of persons or goods” into the United States on public health grounds. This is in addition to the Remain in Mexico Policy/Migrant Protection Protocol (which requires asylum seekers who pass through third countries to apply for asylum in those countries, instead of the U.S.) and the proposed new rules issued by the Trump Administration on June 10, which purport to further limit asylum and make it harder to obtain.

The countries that many LGBTI+ asylum seekers pass through before reaching the U.S. include the so-called Northern Triangle countries, which have been demonstrably hostile to LGBTI+ people; these include El Salvador, Guatemala, and Honduras. Amnesty International and Human Rights Watch have both documented hostility, persecution, and even torture, faced by LGBTI+ asylum seekers there.

Moreover, currently, those LGBTI+ asylum seekers who have made it to the U.S. are often incarcerated in some of the worst conditions, while awaiting disposition of their claims. They are generally denied or cannot afford bail, and transgender asylum seekers are often held in solitary confinement for prolonged periods. Those, who will now be forced to seek asylum in other countries, likely face similar conditions in countries which have been demonstrably hostile to these claims.

A common concern for human dignity and human rights mandates that LGBTI+ asylum seekers should not be placed in these situations. “The nature of injustice is that we may not always see it in our own times,” Justice Kennedy wrote in Obergefell. But now that we see it, what will we do about it?