EU criticizes 'gay tests' on asylum seekers

The EU's Fundamental Rights Agency (FRA) has branded the Czech practice of testing a gay asylum applicant's penis to determine if he is homosexual as intrusive, inappropriate and a potential human rights violation.

Under the system of phallometric tests, an apparatus is attached to the asylum applicant's penis that gauges his response to heterosexual erotic material. If the tests show no sexual arousal, the Interior Ministry's Asylum and Migration Policies Department deems the man a homosexual for the purposes of his application. Homosexual asylum seekers usually come from countries where they face threats of violence or even death for their sexuality.

In its latest EU-wide report on discrimination by sexual orientation, the FRA branded the test "an intrusive examination bound to interfere with the person's psychological integrity and with the core of his intimacy, likely raising feelings of shame and suffering."

The agency said the "the reliability of phallometric testing is questionable, since it is dubious whether it reaches sufficiently clear conclusions to be used as evidence," adding that it was "inappropriate" for bisexuals.

The report pointed out that the test was "particularly inappropriate for asylum seekers, given the fact that many of them might have suffered abuse due to their sexual orientation and are thus specifically constrained by this kind of exposure."

It concluded the practice, which is not used in any other EU state, could constitute a violation of Articles 3 and 8 of the European Charter of Fundamental Rights, on torture or inhumane treatment and the right to privacy, respectively.

Vladimír Řepka, spokesman for the Interior Ministry, said the ministry "strongly rejects" the claims that the tests violate the European Charter of Fundamental Rights.

He told The Prague Post the procedure was used in fewer than 10 cases, adding that it was always carried out by a trained sexologist "as part of a comprehensive sexological diagnostic examination."

Řepka said the testing was always done based on the express written consent of the applicant, and that in one case the applicant had requested the procedure be carried out.

The spokesman added that the tests were only applied to applicants who had "weak to zero credibility of testimony" and who were from countries that "severely punished" homosexuality up to and including the death penalty, citing Iran, Syria, Egypt, Azerbaijan, Cameroon and Nigeria, among others.

The FRA says the principle of consent is "meaningless" in the context of asylum cases, both because applicants can negate their claim by refusing to take the test, and because they may not be sufficiently aware of the nature of the test to make an informed decision.

The issue came to the FRA's attention after a German Administrative Court ruling in the state of Schleswig-Holstein last September, in which the court refused to allow an Iranian gay man to be sent to the Czech Republic because he would face phallometric testing.

Jean Jacques Soukup, editor of Prague.GayGuide.net, said he hoped the government would take the report's conclusions of a potential breach of international human rights law seriously.

"Applicants who have been abused in their home country could be further traumatized by such a degrading treatment," he told The Prague Post. "Furthermore, it is not certain whether the test can provide reliable results - for example, the test doesn't work if someone is bisexual."

Soukup said he doubts there is "any reliable method to test anyone's sexual orientation," adding that he supports the method of self-identification to establish LGBT (lesbian, gay, bisexual and transgender) orientations, a practice that is favored by the UN Refugee Agency.

Roman Joch, the government's human rights and foreign policy adviser, told The Prague Post he agreed the tests were "certainly not dignified" and said it was worth considering whether they were "necessary or appropriate" for asylum applications.

However, he also strongly disagreed with any suggestion the Czech Republic was a homophobic country, arguing that any equivalence made between it and countries where "homosexuals risk death" would be "absurd, morally defective and even perverse."

In 1993, the United States Supreme Court ruled that phallometric tests were legally inadmissible as a way to prove pedophilia because they were not considered reliable within the scientific community.

While other European countries do not use phallometric testing, many of them have tighter restrictions than the Czech Republic on granting asylum to homosexuals, the FRA noted in its report.

The Czech Republic was also the first former communist country to grant legal recognition for same-sex partnerships in 2006.

- Klára Jiřičná contributed to this report.

Bill Lehane can be reached at
blehane@praguepost.com