By MARINA JIMENEZ
From Tuesday's Globe and Mail
The Immigration and Refugee Board has rejected the asylum case of a Mexican homosexual man on the grounds that he is not "visibly effeminate" and therefore not vulnerable to persecution in his homeland.
Fernando Enrique Rivera, who lifts weights, wears his hair closely cropped and favours jeans and conservative sports shirts, believes the IRB's decision shows a stereotypical understanding of homosexuality.
"I know some gay refugees who put on lipstick and dressed effeminately for their hearings because they thought it would help their case. But that is not who I am," Mr. Rivera said in an interview in a Church Street eatery in the heart of Toronto's gay village. "You don't choose to be gay. It's not like being a vegetarian. It's a very complex thing."
During the interview, a waiter jokingly chided him: "Your problem is, you're too butch."
IRB member Milagros Eustaquio essentially came to the same conclusion. "Effeminate gestures come naturally and unconsciously," she wrote in her decision in December, 2002. "If he were indeed visibly effeminate, I do not think it is likely he would have been able to easily land a job with the 'macho' police force of Puerto Vallarta."
Last month, the federal court upheld the IRB ruling and now Mr. Rivera fears he could be deported if his final avenue of appeal — a humanitarian and compassionate review — fails.
The 30-year-old business graduate came to Canada four years ago, after he was blackmailed by local police in Puerto Vallarta, who threatened to reveal his sexual orientation.
He feared he would lose his job as a statistician with the city's police force if his manager found out he was gay. He said a lesbian co-worker was dismissed after her sexual orientation became known.
The IRB believed his story. But the panel member also found that Mr. Rivera could relocate to Mexico City where conditions for homosexuals are more favourable. Only effeminate men, HIV-positive men, political activists and whistle blowers in Mexico need refugee protection, according to documentary evidence relied on by the IRB.
"The IRB's reasoning was, 'You don't act or look gay, so just go back and no one is going to bother you.' It's like telling him to go back and live in the closet," said Robert Blanshay, Mr. Rivera's lawyer.
The IRB is struggling to process a dramatic surge in claims filed on the basis of sexual orientation. In the past three years, about 2,500 people from 75 different countries have sought asylum in Canada on this basis. Nearly 25 per cent of them are from Mexico, an ostensibly gay-friendly country with an annual gay pride day parade, gay politicians and legislative changes protecting homosexuals.
However, Mr. Rivera says conditions for gays in Mexico are not as favourable as they may appear. The country's strong machismo culture and traditional family values forced him to hide his sexuality for years, he said.
Handsome and chivalrous, Mr. Rivera always opens doors for women and walks on the side closest to the curb. He enjoys soccer and computer games.
Nobody ever suspected his true sexual orientation and he kept it a secret from his family and his employers, fearing he would lose his job otherwise. "Growing up, I was constantly asked 'Why don't you have a girlfriend?'." Mr. Rivera said. "I was always under so much pressure and felt so stigmatized."
While working for the police force in Puerto Vallarta, he had a brief and clandestine relationship with an American man, worrying whenever they were out together that he would run into colleagues.
He said he fled after he was repeatedly the victim of police extortion. He believed Canada would offer him a haven and he did not want to pretend to be effeminate to bolster his chances of success with the refugee process.
"I believed in the system and I still do," Mr. Rivera said. "Canada is an open society with so much diversity. I can't go back to Mexico to lead a life of deception. I want to be in a society that accepts me the way I am."
A 2003 report from the Washington-based World Policy Institute says that despite human-rights codes outlawing discrimination on the basis of sexual orientation, local officials abuse gays in some parts of Mexico.
Mr. Blanshay notes that some IRB members are struggling to assess these sensitive cases. "This whole area of claims based on sexual orientation is a tricky one. IRB members have to be careful they're not insulting people by asking them to corroborate their sexuality," he said. "Some haven't been exposed to people in the gay community, so they look for the stereotype. If the claimants aren't lisping or don't dress in an outlandish manner, then they don't strike them as being gay."
Refugee lawyers acknowledge that some claimants misrepresent themselves as gay, but say bogus claimants exist in all kinds of refugee cases.
As for Mr. Rivera, he said he has a large circle of supportive friends here and loves working for the Region of York. During last year's SARS crisis he worked on the front line, assessing sick patients. "In Canada, if they know you're gay, they don't care," he says. "There are a lot of professional gays. We're not all hair stylists and designers."