Lesbian Who Fled Army Opens Legal Ground in Canada

After fleeing abuse at Fort Campbell, a lesbian now living in Canada is hoping for asylum on the unusual grounds of anti-homosexual persecution within the U.S. military. Her case could affect other claims by asylum seekers from democracies.

For months, Pvt. Bethany Smith silently endured taunts and physical abuse from her fellow soldiers at Fort Campbell, Ky., for being a lesbian. But when she received an anonymous note one day with a threat against her life, Smith decided she had to get out of the Army.

More than 12,000 service members have lost their jobs because of the U.S. military’s so-called “don’t ask, don’t tell” policy. A disproportionate number of those discharges are women, according to 2008 statistics gathered by the Washington-based Servicemembers Legal Defense Network from the government under the Freedom of Information Act.

With the help of an acquaintance, Smith abandoned Fort Campbell and drove for two straight days to Canada, where she hoped to seek asylum. She crossed the border on Sept. 11, 2007.

More than two years later, Smith, now 21, is fighting to stay in Ottawa, where she works for a call center.

Her efforts to obtain refugee status were boosted in November when a Canadian federal court judge decided her case should be reconsidered by the country’s refugee board, which had earlier rejected her claim.

Smith assumes she would face a court martial for desertion in the United States and possibly further charges for having same-sex relations. She also believes that a court martial would consist of her peers, who would likely share the same views about her sexual orientation as her tormentors.

Smith’s case, believed to be a first, is based on anti-homosexual persecution within the U.S. military, says Liew, rather than on a reluctance to serve overseas, as has been the case for a multitude of other U.S. soldiers who have fled to Canada to avoid serving in Iraq and Afghanistan.

Even so, the court’s decision in Smith’s favor could have far-reaching implications for other refugee claimants, Liew said.

“One of the most important things that came out of this case is that every case should be looked at individually and on its own merits and facts,” she said.

Canada has been reluctant to offer asylum to U.S. soldiers avoiding war in Iraq and Afghanistan, though it had welcomed defectors during the Vietnam War. In 2008, Jeremy Hinzman, the first U.S. Army deserter to seek asylum in the country, was ordered to be deported after the Federal Court of Appeal decided he would not face serious punishment upon his return.

Under the U.S. military’s “don’t ask, don’t tell” policy, which has been officially followed since 1993, gay and lesbian individuals are allowed to serve in the military as long as they do not engage in homosexual conduct.

Federal Court Justice Yves de Montigny, however, noted this policy had mixed results in quelling anti-homosexual discrimination. He pointed out that a soldier, Pvt. Barry Winchell, who was believed to be gay, had been beaten to death in 1999 at the same base where Smith was posted.

He also noted that the military code still makes it an offense to have sexual relations with a person of the same sex.

In his decision, de Montigny wrote that Smith “provided evidence that she was afraid that her superiors may have been involved in the harassment and threats targeted at her.”

The judge also said her case aligned with evidence indicating that U.S. military commanders are too often complacent and sometimes even actively abusive toward gays and lesbians.

He said Smith offered evidence that the military is not discharging as many gay and lesbian personnel as it did before 2001 due to the need for more soldiers in the wars in Iraq and Afghanistan.

De Montigny disputed the refugee board’s earlier findings that Smith had not presented “clear and convincing” proof of the inability of the United States to protect her and had not proved she faced “a risk to her life or risk of cruel and unusual treatment or punishment upon return to the United States.”

In its earlier ruling, the board had also concluded that the acts of harassment and intimidation and written threats did not constitute persecution in this particular case, according to court documents.

Liew said she and her client will now go back to the refugee board for another hearing, but did not know when.

Extracts from a longer article at http://www.womensenews.org/story/lesbian-and-transgender/091204/lesbian-who-fled-army-opens-legal-ground-in-canada

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