Sexual orientation is so fundamental to identity that one should not be forced to renounce it


Re: X & Ors v Z & Ors (C-199/12 to C-201/12)

Preliminary ruling concerning the interpretation of Council Directive 2004/83/EC, art 9(1)(a) on the minimum standards for the qualification status of third-country nationals or Stateless persons as refugees or as persons who otherwise need international protection.

It is common ground that a person’s sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it. Directive 2004/83/EC, art 10(1)(d) must be interpreted as meaning that the existence of criminal laws, such as those at issue in each of the cases in the main proceedings, which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group. Directive 2004/83/EC, art 9(1) read with art 9(2)(c) must be interpreted as meaning that the criminalisation of homosexual acts alone does not, in itself, constitute persecution. However, a term of imprisonment which sanctions homosexual acts and which was actually applied in the country of origin that adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constituted an act of persecution. For the purpose of determining which acts may be regarded as constituting persecution within the meaning of Directive 2004/83/EC, art 9(1) it is unnecessary to distinguish acts that interfere with the core areas of the expression of sexual orientation even assuming it were possible to identify them, from acts which do not affect those purported core areas.

Karon Monaghan QC was involved in this case.