Nuno Ferreira, Professor of Law at the University of Sussex; Maria Federica Moscati, Reader in Law and Society at the University of Sussex; and Senthorun Raj, Reader in Human Rights Law at Manchester Metropolitan University
What if we queered judgments affecting queer migrants and refugees? Using a queer lens to analyse law and policy is a social justice crucial endeavour, and widely recognised by scholars and practitioners alike as an important intellectual and policy exercise. The Queer Judgments Project (QJP) is contributing to this movement by re-imagining, re-writing, and re-inventing, from queer and other complementing perspectives, judgments that have considered sexual orientation, gender identity and expression, or sex characteristics (SOGIESC) issues. QJP evolved from disparate conversations we have had about how legal judgments related to SOGIESC could have been written in more appropriate terms in light of the legal framework at the time. We wanted to cultivate a project that brought together friends, colleagues, and activists who were interested in improving and challenging the law and its application to make life better for lesbian, gay, bisexual, transgender, intersex, queer and other (LGBTIQ+) people and communities.
We are building on a tradition of initiatives that have re-written legal decisions for a fairer future. This tradition has started with the Feminist Judgments projects, which now have taken place in the UK, Ireland, Australia, the USA (here, here, here and here) and Brazil (English translation here). These initiatives then expanded to other fields, and now include the Children’s Rights judgments project, the Earth Law judgments project, the Re-writing Judgments of the ECHR book, the book project Intersectional Rewrites: European Court of Human Rights Judgments Reimagined and other critical judgments projects listed here. From a queer perspective, we also found inspiration in Alex Sharpe’s important article “Queering Judgment”.
The Queer Judgments book
The QJP edited collection has been published by Counterpress in January 2025, is downloadable on a ‘pay as you feel’ basis, and is the first output of the project. With an international reach and multi-disciplinary scope, this edited collection invites you to a queer dance through 26 judgments and commentaries. The book covers various legal fields: from crime and sodomy cases to privacy and discrimination cases, from family and parenthood cases to health and reproduction cases, and ending on asylum and migration cases.
Part 5 of the book is precisely on asylum and migration cases and contains three contributions. The first one is authored by Alex Powell and it relates to the 2010 UK Supreme Court’s decision in HJ(Iran) & HT(Cameroon) v Secretary of State for the Home Department. The case concerned two gay men seeking asylum in the UK, and the main point revolved around whether authorities could legitimately expect asylum claimants seeking protection on grounds of their sexual orientation to return to their countries of origin and conceal their sexual orientation to avoid the risk of persecution. Although this judgment has been considered a significant victory for such claimants for reducing the scope of such discretion reasoning, Powell argues for a queer counter-judgment that completely precludes any expectation of discretion and puts forward an alternative that is less homonormative, homonationalist, and restrictive of sexual diversity.
This contribution is followed by that of Carmelo Danisi and Nuno Ferreira, who explore the 2013 CJEU judgment in X, Y and Z v. Minister voor Immigratie en Asiel. The case related to three gay men—from Sierra Leone, Uganda and Senegal—who saw their asylum claims refused by the Dutch authorities. The authors offer a re-written judgment that is informed by a queer reading of the legislation and fundamental rights in question, as well as a human rights-based approach to refugee law, thus not only precluding any expectation of discretion, but also adopting a less restrictive approach to determine that claimants belong to a particular social group, and considering that criminalisation of same-sex sexual acts should be presumed to be persecution.
Finally, Alina Tryfonidou reimagined the 2018 CJEU judgment in the Coman case. In this case, the Court considered the situation of a same-sex male couple who had made use of EU free movement of persons, and wished to see their marriage recognised in Romania—the home country of one of the members of the couple. Although the Court produced a decision that was positive for the applicants by recognising that their right to free movement under EU law required the recognition of their marriage in Romania, Tryfonidou proposes a re-written judgment that adds to the original by also considering a fundamental rights line of argumentation and queering the terminology and overall approach of the Court.
The QJP legacy
Contributions in this QJP book combine queer approaches with feminist, trans, critical race, decolonial, heritage, reproductive, decarceration, disability and ecological approaches. Our hope is that the contributions on asylum and migration discussed above, along all others in this book, will inspire others to consider queer angles to their own work, and nurture combinations of theoretical frameworks that join efforts in broader social justice issues and movements.
We also hope that this volume will work as a stepping stone for other volumes and initiatives, perhaps focused on specific jurisdictions, regions, themes, identities, characteristics, and so on. Undoubtedly, there are many more judgments related to asylum and migration that warrant re-writing, from queer and other perspectives.
We are now working on a range of other outputs that fulfil the aims of the project, including a special journal issue and a range of creative outputs. If you’d like to get involved with the project in any capacity, feel free to get in touch – join our queer dance!
If you have any question about the project, please feel free to reach out to the authors.