Insert stereotype here.

Photographer: Jewel Samad/AFP/Getty Images

Asking Judges to Decide Who's Bisexual Is Messy

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
Read More.
a | A

There’s something very awkward about a panel of judges ruling on someone’s sexual orientation. But that still happens in immigration asylum cases -- and Wednesday, a divided appeals court rejected a Jamaican’s claim that he should not be sent home because he was bisexual and subject to harm there. The applicant found an unusual defender in Judge Richard Posner, whose dissenting opinion was characteristically acerbic, entertaining and problematic: He cited Wikipedia entries, dancehall lyrics and a YouTube video, and suggested that, as a bisexual, the applicant might be targeted by gay Jamaicans on his return to the island.

The case arose after Ray Fuller, a 51-year-old Jamaican, was ordered removed by federal immigration authorities. Fuller immigrated to the U.S. in 1999 on a fiance visa. He and his wife divorced in 2002; in 2004, he pleaded guilty to attempted sexual assault. He originally got a suspended sentence, but he violated the terms of his probation and got four years in prison.

Fuller defended against the removal order by claiming asylum. He explained that he was bisexual, and described relationships with boyfriends as well as girlfriends throughout his life. He said he’d been attacked and stoned as a college student in Kingston for being gay, and had been robbed at knife point by an assailant who called him a “batty man,” Jamaican slang for a gay man. He also said that he’d been shot twice by an anti-gay attacker while dancing with a boyfriend in Ocho Rios, a gay-friendly Jamaican resort.

As part of his asylum claim, Fuller also asserted that bisexuals are subject to violence in Jamaica, and that he would be in danger if he returned.

A federal immigration judge rejected Fuller’s claims. The judge questioned his sexuality, saying that Fuller had been married to a woman and fathered several children with her and other women. The judge also pointed to inconsistencies in Fuller’s narrative: He had given two different accounts of when he was shot and with which boyfriend; he had confused the names of his sisters and his mother and the total number of sisters he had. Fuller had submitted letters from ex-boyfriends as well, but the judge suggested they might be forgeries, noting that all had matching dotted signature lines.

For good measure, the judge held that Fuller had not shown he would be subject to violence if he returned to Jamaica.

By a 2-1 vote, the U.S. Court of Appeals for the 7th Circuit upheld the immigration judge’s decision. In her majority opinion, Chief Judge Diane Wood correctly noted that the appeals court wasn’t supposed to decide the facts on its own, but to defer to the immigration judge’s factual determination, provided it was supported by substantial evidence. Wood thought Fuller’s confusion about when he was shot coupled with his mistakes about his mother and sisters were sufficient reason for the judge to have disbelieved Fuller.

Posner’s dissent reflected his extreme skepticism of deference to lower court judges. “Apparently,” he wrote, “the immigration judge does not know the meaning of bisexual.” He was justifiably dismissive of the judge’s argument that Fuller being married to a woman was a reason to reject his claim of bisexuality.

But Posner being Posner, he couldn’t rest there. First he cited a Wikipedia entry for the term “batty boy” to prove that Jamaica is a dangerous place for gay people. The same entry pointed Posner to “a notorious song, ‘Boom Bye Bye’ written by dancehall musician Buju Banton, [which] advocates violence against batty boys, including shooting them in the head and setting them on fire: ‘Boom bye bye, in a batty bwoy head/Rude boy nah promote no nasty man, dem hafi dead.’”

Now there’s nothing wrong with judges doing research online, like the rest of us. But as I tell my students and my kids, Wikipedia is a first step for research, not a destination in itself. A single line from a single song isn’t proof of a cultural attitude of homophobia. If it were, the U.S. wouldn’t be a safe asylum for gay people, because every country has songs with homophobic lyrics.  There is real discrimination against gay people in Jamaica, to be sure. And homosexuality remains a crime there. But outside of the American imagination, Jamaican culture can’t be epitomized by one song.

Posner then made the excellent point that the date and place of Fuller’s shooting are irrelevant to the question of whether he’s bisexual. Moving seamlessly into the realm of psychoanalytic speculation, he went on to propose that Fuller may have confused the names of his mother and sisters because he had “lashed back at them” for having rejected him on account of his sexual orientation.

Posner is surely right that Fuller is bisexual and that the immigration judge was biased or ignorant or both. Yet Posner couldn’t resist a final fillip.

He said that the immigration judge had ignored a “wrinkle” in the case, namely that “homosexuals often are antipathetic to bisexuals.” As proof for this assertion, Posner offered three citations. One was to a San Francisco human rights commission report on the invisibility of bisexuals; the others were to Answers.com and a YouTube video titled “What do gay men think about bisexuals?”

Posner went on to speculate that although Jamaican gays might not be “likely to attack Fuller physically,” nonetheless “they might well talk about his return to the island,” which might lead heterosexual people who heard the talk to harm Fuller physically.

There’s no other judge like Posner, and that’s probably a good thing. In this case, the 77-year-old Reagan appointee probably got the right result. But boy did he go out on a limb in reaching it.

  1. To be fair to Posner, he went on to say that State Department human rights report as well as Amnesty International “confirm the Wikipedia entry.” That formulation has to be willfully provocative, right?

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net