An American lesbian is breaking new ground in the fight for refuge from the U.S. military's "Don't Ask, Don't Tell" policy.
On September 11, 2007, Army Private Bethany Smith (right), then 21, fled to Canada after enduring taunts, physical abuse, and a
On November 20, 2009, Judge Yves de Montigny of the Federal Court of Canada granted Smith's petition for judicial review of the Canadian Immigration and Refugee Board's denial of her application for asylum on the grounds that she had failed to seek state protection, which would have been adequate.
The petition by Smith, who is represented by Jamie Liew of the law firm Galldin & Liew, states that Smith began experiencing homophobic harassment from her fellow soldiers soon after she was assigned to the motor pool at Fort Campbell in Kentucky. The situation deteriorated after a soldier spotted her holding hands with a woman off base. Smith alleges that she received hundreds of written threats, including a specific death threat, as well as one physical assault. When Smith revealed her sexual orientation to her supervising sergeant in an attempt to be discharged, she was refused and ordered not to speak to any higher ranking officers about the matter. Even after Smith fled Fort Campbell, she received several anonymous calls, threatening her with abuse and death if she returned. In addition to these threats, Smith faces court martial for desertion upon return.
► Held that she had presented "clear and convincing" evidence that the United States is unwilling to protect her from persecution on account of her sexual orientation.
► Held that Smith had established "a serious possibility" of persecution on account of her sexual orientation or that she is "more likely than not" to face a risk to her life or cruel and unusual treatment or punishment upon her return to the United States.
► Distinguished Smith from other U.S. servicemembers who have sought refuge in Canada on account of their "conscientious objector" status. While the Federal Court of Canada has previously held that conscientious objection alone is not a basis for asylum, Smith faces persecution solely on the basis of her sexual orientation, which has been recognized as a protected ground for asylum under Canada's Immigration and Refugee Protection Act as well as the 1951 Convention Relating to the Status of Refugees.
► Placed particular emphasis on the ability and/or willingness of the United States to protect Smith from persecution based on her sexuality. Judge de Montigny wrote that, even though refugee applicants must normally make multiple attempts to obtain state protection, "it is clear that in the Army reigns an atmosphere of unconditional obedience to the hierarchy" which the Board should have taken into account when evaluating Smith's claim. Smith's testimony that she had been told by her superiors to "tone down her behaviour" and that she endured harsher treatment from superiors once her sexual orientation became known supported her contention that it would have been futile to seek further protection within the military. The judge added that "documentary evidence indicating that superiors in the U.S. military are too often complacent and sometimes even actively participate in the harassment and abuse directed at gays and lesbians in the military" also indicated an absence of state protection.
► Found, finally, that the Board's conclusion that the fatal beating of Private Barry Winchell in at Fort Campbell in 1999 was an "isolated" event, rather than evidence of insufficient state protection, went beyond the record and was speculative.
The Board must now reassess Smith's asylum claim in light of the guidance provided by Judge de Montigny. Over 13,500 members of the U.S. armed services have been discharged since "Don't Ask, Don't Tell" took effect in 1994. President Barack Obama has vowed to repeal the policy.
