Are you gay? Prove it.

Convincing an immigration officer of one's sexuality may be a challenge for would-be refugee claimants.

News broke yesterday about a Nigerian refugee claimant named Francis Ojo Ogunrinde, who happens to be gay. Or so he claims.

Last summer a senior Canadian immigration officer rejected the 40-year-old Nigerian’s refugee application, acknowledging that even though conditions for LGBT people are not “favourable” in Nigeria (where being gay is illegal and in 12 states punishable by death) she simply wasn’t “convinced” he was a homosexual. It turns out Ogunrinde’s letters from and photos of his alleged boyfriend weren’t steamy or provocative enough to activate the immigration officer’s gaydar.  And being from Nigeria and all, he probably didn’t know a single lyric from Rent. Case closed.

Or maybe not.

Last month, a federal judge named James Russell ordered that the officer reopen the case and give Ogunrinde’s allegedly dubious sexuality closer consideration. According to Postmedia News, the judge ruled that the officer “erred by failing to consider the ‘complete picture before her,’ and ordered that Ogunrinde’s claim get a second look in a case that raises questions about the extent to which immigration officers should be probing the bedroom activities of claimants.” Makes sense to me.

If only he had stopped there.

“At the same time,” Russell wrote, “the acts and behaviours which establish a claimant’s homosexuality are inherently private.” “When evaluating claims based on sexual orientation, officers must be mindful of the inherent difficulties in proving that a claimant has engaged in any particular sexual activities.”

The problem here isn’t a lack of mindfulness in proving someone’s sexuality: it’s in the belief that a person’s sexuality is something you need to prove in the first place. Yes, of course gay people have gay sex, but having gay sex—or any sex at all—is not a prerequisite to gayness (unless of course Judge Russell doesn’t believe in gay virgins, or virgins of any kind). And it isn’t necessarily proof either.

What is? Two words: “I’m gay.”

Not “I’m gay and last night I watched Glee and sodomized somebody. Here’s a photograph.” Just  “I’m gay.”

Straight people do not, and should not, have to prove they are straight. Neither should homosexuals.

But what if saying “I’m gay” isn’t good enough? What if our borders are suddenly flooded with self-proclaimed homosexual refugees from homophobic countries? Well then hopefully like Ogunrinde, those claimants will have photographs of and letters from their respective same sex partners or testimonies of friends and gay organizations confirming their sexuality. That, you’d think, would be enough.

Unfortunately–at least in Ogunrinde’s case–it wasn’t. Why? Because a sizable portion of our society still believes that a person’s sexuality can be “established” (to use Judge Russell’s words) not by his identity or his relationships, but by the “particular sexual activities” in which he engages.

In the end, I’m not suggesting our immigration officers blindly approve refugee applications, and throw all investigation to the wind. But it would be nice if their reservations about letting people cross our borders were just as strong when it came to peering into their  bedrooms.

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