When he was a trainee at the Court of Florence in 2022, Davide Tomaselli, PhD researcher at the EUI Department of Law, turned his attention to LGBTQI+ and queer migrant communities. While reviewing applicants’ files and cases, he witnessed a range of behaviours in how judges approached asylum cases. Some decisions were marked by stereotypes or bias, others by a lack of basic understanding of what it means to be LGBTQI+ or to live in a country where such identities or acts are criminalised.
Blending his professional experience with a strong political consciousness, Davide found the right prompts to begin his research path.
His PhD focuses on queer critical approaches to EU law, and part of it devotes specific attention to SOGIESC (Sexual Orientation, Gender Identity and Expression, and Sexual Characteristics) asylum cases, those in which people claim asylum by virtue of their sexual orientation or gender identity.
“These kinds of claims were not accepted under international refugee law before the late 80s–90s, basically, so it's a relatively recent phenomenon,” Davide explains. This exclusion is tied to how the 1951 Geneva Convention was originally drafted. Refugee status was granted only to those persecuted on specific grounds: nationality, race, religion, political opinion, or membership in a particular social group.
“It could perfectly be that LGBTQI+ people were applying for refugee status by virtue of persecution suffered because of their political opinion, for example, but not by their sexual orientation”, he adds, “This began to change as interpretations of these legal categories evolved with political and cultural developments. On top of political opinion, nationality, race, there's this other ground that, under EU law specifically, in order to be recognised as a member of a particular social group (in this case, for example, SOGIESC people), one need to satisfy two concurrent elements: The first one is an internal recognition—so, let's say, self-identification—and external recognition, so the group is seen as such, as different or as a recognisable group per se by the rest of society.”
But when examined through queer lens, EU asylum law shows deep structural flaws in how it treats SOGIESC claimants. The legal framework forces applicants into rigid identity categories or demands proof in narrowly defined ways, even when their experiences don’t align with those labels.
“For instance, public authorities dealing with asylum claims can flip the narrative whenever they want, moving from identity to acts”, Davide notes, citing authors like Janna Wessels “This raises a whole array of problems and obstacles, or criticalities, that are tied to how we understand, in Western terms, LGBTQI+ identities. The means of proof to be believed and be recognised as refugees.”
Davide also connects this legal landscape to broader political narratives in Europe, particularly around migration and sexuality.
“This logic is mirrored in political and legal discourse,” he says, “noting how recent rulings by the Court of Justice of the EU and the European Court of Human Rights increasingly reflect not just homonationalist ideas, but also related dynamics like femonationalism—the instrumental use of feminist values to justify exclusion or nationalism.”
Following this perspective, Davide is applying queer theory as a critical lens to European Union law.
“Queer means a critical, radical approach to reading reality through gender and sexuality, and what happens with oppression, domination, and power relations linked to these aspects of our subjectivities,” he says. “It's not just a matter of asking the state to protect our LGBTQI+ rights, but it's a way deeper deconstruction of reality through these categories.”
One of the key questions on the basis of his research is: What new or unheard-of insights can this approach bring to make things better?
“I’m always cautious about the idea of reimagining things without first understanding and breaking them down. Otherwise, we risk doing what Il Gattopardo warned about — ‘changing everything so that nothing changes.’”
Davide emphasises that he doesn’t view queerness simply as a process of fluidification. Instead, he conceives it as a starting point for critique. “The goal isn't to multiply identity categories or merely deconstruct them through political analysis, but to use queer perspectives as a foundation to critically deconstruct and rethink broader structures,” he argues.
“Applied to the case of refugee law, the issue is not really to see how asylum and immigration law in Europe can include, but rather to use, or to start from, queer examples or queer visions of what it means to be a refugee, what it means to be a migrant or to develop a more radical and critical view on reality in this sense,” he explains. “The end point could better be getting to argue that actually the abolition of borders and Frontex is a queer answer to immigration and asylum law, rather than expanding existing categories in a queer sense.”
This approach calls for a deep understanding of how asylum is currently conceptualised in Europe, especially in relation to the way borders are controlled and how public authorities are funded to enforce them.
At the EUI, Davide has found fertile ground for this type of critical inquiry.
“One of the main reasons I chose the EUI is that it offers a clearer view of how knowledge is materially produced. The research culture here is collaborative—we’re constantly engaging in seminars, events, and working groups. You’re always aware of the process of producing knowledge together.”
But the value of the institute, in his view, goes beyond the academic setting.
“It’s also about researchers going beyond their scholar status and engaging with their political subjectivity,” he says. “That includes mobilising within the institution for grant equality among researchers, but also connecting with social movements in the city, like we did for Palestine. It’s about cultivating a critical and conscious take on what it means to be an academic and to produce knowledge nowadays.”
Davide Tomaselli is a PhD researcher at the EUI Department of Law. His research builds on queer approaches to develop a critique of the EU legal order. His PhD thesis, ‘Too Queer to Be EU: A Queer Materialist Reader of the Law of the European Union’, is supervised by Professor Loïc Azoulai. His most recent publication is titled "'Forced' Refugees versus 'Voluntary' Migrants”.