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LGBTQ Policy Journal

Topic / Gender, Race and Identity

Tremendo Show: Performing and Producing Queerness in Asylum Claims Based on Sexual Orientation

A growing number of people have sought asylum in the United States with claims based on sexual orientation discrimination, reflecting expanding notions of identity-based rights and protections. These claims have been successful for many applicants, and have undoubtedly yielded positive and life-changing individual results. As sexual orientation claims become a fixture in U.S. asylum law, however, a number of potentially dangerous precedents are being set regarding what queerness looks like globally, and what the outer limits of queer identity might be.  My discussion of queer asylum narratives will consider the elements of well-founded fear and particular social group, and unpack the ways in which these two crucial pieces of an asylum claim work together to create an essentialist homosexual identity that ultimately depends on imagining queerness as a strikingly one-dimensional site of disempowerment and injury.[1]


The conversation surrounding refugees took off in earnest following World War II.[2] The United Nations Convention Relating to the Status of Refugees, the key legal document defining the rights of refugees, was open for signatures in 1951 and later updated in 1967 by the United Nations Protocol.[3] It was not until 1980, however, that the United States enacted its own Refugee Act, which codifies the protocol and creates the standard asylum seekers looking to settle in the United States must meet.[4] The U.S. law requires that an applicant for asylum (1)  to have “a well-founded fear of persecution;” (2) the fear must be based on past persecution or the risk of future persecution; (3) the persecution must be “on account of race, religion, nationality, membership in a particular social group, or political opinion,” and (4) the persecutor must be the government or someone whom the government is unwilling or unable to control.[5] That is to say, asylum hinges on the (intersecting) elements of fear and identity, and defining persecution is consequently tied to the formulation of a social group, and vice versa.

Particular Social Group and a Monolithic Queer Identity

The landmark case In re TobosoAlfonso, in which the applicant asserted that “he [was] a homosexual who ha[d] been persecuted in Cuba and would be persecuted again on account of that status should he return to his homeland,” first established homosexuality as a basis for a social group in 1990.[6] This subset of “particular social group” is more ambiguous, and therefore more malleable than the other categories of race, religion, political opinion and nationality. While this translates to it being flexible enough to create claims for uniquely specific groups such as Colombian “noncriminal drug informants” and “wealthy Guatemalans,” along with queer individuals, its malleability also makes it uniquely contentious.[7] In looking at petitions based on queer identity, a rather Foucauldian struggle between homosexuality as conduct and homosexuality as status arises, as well as a back-and-forth regarding the mutability and visibility of said status or conduct. In re TobosoAlfonso is therefore a notable case not only in that it sets the precedent for queer migration, but also in that it created a set of norms surrounding how the United States conceptualizes queerness itself.[8] These norms have since been powerfully deployed in asylum law, creating not only the threshold for entrance into the country, but also a stock queer character.

Rather than creating space for complex identities, the grey area of particular social group has arguably created a low-scale panic about defining homosexuality instead—specifically, defining homosexuality in such a way that fits comfortably within an adjudicator’s conception of what a gay identity should look like. The tension between conduct and status is at the crux of this issue. A few years before Alfonso, Matter of Acosta established the current standard of a particular social group as “a group of persons who share a common immutable characteristic that members of the group cannot or should not be required to change.”[9] Although courts have made it clear that biological innateness is not a requirement of immutability, “the characteristic must be seen…as having some greater significance to the individual through its innateness.”[10] Thus, the debate within asylum law becomes one of “defining the valid parameters of human identity and expression capable of protection through a human rights framework.”[11]

In Not Gay Enough for the Government, Deborah Morgan suggests the standard for an immutable gay identity grew out of the activism following Bowers v. Hardwick. This decision, which upheld the constitutionality of sodomy laws in Georgia in 1986, was a catalyst for a very particular breed of gay rights organizing.[13] Because the Supreme Court legitimized the states’ right to criminalize homosexuals by virtue of their private conduct, activists assumed a rhetoric of demanding equality while saying nothing about sexual behavior.[14]  “Much LGBT litigation activity until Lawrence v. Texas,” Morgan furthers, “…employed a ‘discourse of equivalents’ rhetoric whereby LGBT activists asserted their right to equality based on an immutable homosexual identity analogous to race,” such that intersectionality is erased entirely.[15] The construction of a homosexual identity that became a basis for asylum thus grew out of this historical background, which relies heavily on the idea of an inborn and unchangeable gay identity that privileges a white, Western gay experience.

In spite—or perhaps because—of adjudicators’ reliance on immutability as an indicator of membership in a particular social group, queerness seems to function differently from other claims. Post TobosoAlfonso, the question is no longer whether a group exists, but rather, whether an applicant is truly part of that social group.[16]  That is to say, queerness must be proven in a way that race, gender, and so forth does not.[17] In addition to raising some wide-sweeping theoretical concerns, this raises some very practical ones for asylum seekers as well.

Gay Enough

The burden of proof in asylum claims rests on the claimant, and it is often the claimant’s affidavit—their own account of self-identity— that is at the claim’s core.[18] If we turn, once again, to queer history in the United States, this is somewhat paradoxical in that the representation of homosexuality has historically never had anything to do with truth.[19] On the contrary, “it was about masks, secrets, and deceptions.”[20] This is, of course, entirely the product of wide-sweeping homophobia; stigma necessitated a “double-life,” and a double-life necessitated discretion. But the result was nevertheless that homosexuality was often linked to treacherousness. Scholars point to the homophobic dimension of McCarthyism in the mid 1950s, and more recently, to black men who live on the “down low” as evidence of characters whose perceived untruthfulness makes them inherently suspect, be it as traitors or as deviant spreaders of disease.[21] Even now, the requirement for extrinsic evidence to confirm an applicant’s testimony “lies in the belief that the sexual orientation asylum system is vulnerable to fraud and false claims.”[22] Of course, this is not to say that adjudicators in asylum cases consciously frame each asylee as treacherous or deceitful, but neither are they immune to decades of historical baggage, which asylum seekers must inevitably shoulder.  Therefore, in a legal process that rests so heavily on credibility, it is hardly remiss to say that this history helps set the scene.

“Social visibility” plays a considerable role in the calculus of credibility. That is to say, for one’s experience of queerness to merit the legitimacy and legal cognoscibility of belonging to a particular social group, it must be performed publicly. While decisions from the Board of Immigration Appeals (BIA) have indicated social visibility is not the only factor courts should take into account, neither have they truly indicated how much sway it should hold, nor what actually qualifies as “highly” visible.[23] Often, that means that adjudicators’ preconceived ideas of what queerness looks like turns into an unofficial legal standard, usually to the detriment of asylum seekers, especially queer women and people of color.[24] In addition to reinforcing harmful stereotypes, this test has the effect of punishing those who are able to “cover” their queerness successfully in order to avoid persecution; in fact, it often demands what Kenji Yoshino describes as “reverse covering,” or over-performing traits that are coded as gay.[25] For example, in Shahinaj v. Gonzalez, a case in which an Albanian gay man petitioned for asylum, the immigration judge decided that “Neither [Shahinaj]’s dress, nor his mannerisms, nor his style of speech give any indication that he is a homosexual.”[26] Although the decision was later overturned, the immigration judge’s message to Shahinaj was essentially that he was not gay enough, because his performance of gayness failed to “vividly corroborate U.S. connotations of LGBT status.”[27] Essentially, identity is being formed through discursive practices in the asylum process.

Mockeviciene v. Atty. Gen., a claim for asylum based on a queer Lithuanian woman’s sexual orientation, stands out as another salient example. In this case, the immigration judges did not find Mockeviciene’s claim credible specifically because they did not believe she was a lesbian.[28] They provided the following reasons for their skepticism:

(1) Mockeviciene defined being a lesbian as a woman who wants to be around other women and it does not necessarily involve sexual relationships; (2) although she had been in the United States for four years, she had not had a lesbian partner, so that she was at best a non practicing lesbian, (3) she had no documents to establish that she is a lesbian…, (4) she had not joined any groups while [in the United States] that involved lesbian activities, [and] (5) she did not produce any witnesses to ‘attest to the fact that she is indeed a lesbian’.[29]

In both these cases, a contextual analysis of what it means to be queer in Albania or Lithuania seems to matter less than Western benchmarks of queerness, such as effeminacy in men, an active sex life, or participation in highly visible groups and clubs. To win asylum, it appears, one must “employ a narrative that resonates with the values, beliefs, and assumptions of the judge by draw[ing] upon prevailing norms and beliefs, no matter how problematic they might be.”

It is noteworthy that in a system where there is so much fear of fraud, this very reliance on stereotypes to get to the heart of the truth likely facilitates the same fraudulent claims that fact-finders fear.[31] Stereotypes’ inherent simplicity makes them remarkably easy to adopt and regurgitate. A Canadian immigration attorney furthers, “I used to call it Gay 101. Immigration and Refugee Board members ask claimants what day the Gay Pride parade was on, where the gay bars in Toronto are located, and whether they were in a relationship.”[32] Some women report being asked whether they read Oscar Wilde, or being told they did not look like a lesbian.[33] The almost comical reinforcement of tired gay tropes aside, these absurd criteria aggressively exclude a wide swath of asylum seekers who may not have the knowledge or the means to meet these Western benchmarks. Frequenting gay bars requires a disposable income, reading Oscar Wilde requires a formal education (as well as an assumption that other countries do not have celebrated queer authors of their own), and celebrating Gay Pride requires a straightforward comfort with one’s sexuality that a history of trauma and persecution may simply not accommodate. A claimant’s cultural differences are entirely undercut when adjudicators assume a global, homogenous idea of queer identity. Judith Butler famously writes that identity is formed through a “stylized repetition of acts;” taken as true, we will find that when stereotypical depictions are relied on over and over again, they become the legal truth of what “homosexuality” looks like—white, monogamous, public, moneyed, easily legible— and set the bar for future cases queer asylees bring forward.

In Gender Trouble, Butler argues that the categories of sexuality and gender are socially and culturally constructed, writing, “The notion that there might be a ‘truth’ of sex, as Foucault ironically terms it, is produced precisely through the regulatory practices that generate coherent identities.”[35] Although she is referring specifically to the production of “feminine” and “masculine,” at the root of the problems surrounding proving membership in a particular social group in an asylum claim is this very notion of a monolithic “truth.”  Sexuality, like gender, is arguably socially contructed, rather than emanating from a preexisting essential core, but as it stands, adjudicators often treat pieces of gay “trivia” as markers of an imaginary absolute truth. Therefore, applicants like Tavera Lara, a queer woman and mother from Colombia, baffle adjudicators.[36] In evaluating her claim, the court “placed the identities of lesbian and mother in opposition,” arguing that her fear of persecution as a lesbian could not have been real if she was willing to return to Colombia on one occasion to see her children.[37] In this case “the credibility of her subjective fear is challenged by [her] deviation from a presumed universalized notion of the fundamental characteristic.”[38] Identity is here expressed as a “normative ideal rather than a descriptive feature of experience,” and consequently, when a multitude of queer experiences are brought forward, an American adjudicator’s normative ideal is bound to leave many of them out.[39]

Fear of Persecution

Membership in a particular social group is inextricably linked to the central prong in asylum claims—fear of persecution based on either past experience or a well-founded expectation of persecution in the future. Indeed, in Constructing the Personal Narrative of LGBT Claimants, Berg and Millbank suggest, “the emotional condition is at the heart of the legal definition.”[40] In order to rise to the level of persecution, the harm must be severe.[41] Although a pattern of repeated discrimination can sometimes be considered grave enough to rise to the level of persecution, typically discrimination alone does not meet the threshold.[42] The requisite kind of serious harm generally entails threats to life or freedom or other kinds of grave human rights violations.[43] Extrinsic pieces of evidence, such as police reports, hospital records, letters of support from witnesses or even testimony about country conditions, can help build a case, but it ultimately rests on the asylum seeker to lay out their history of persecution in their affidavit.[44] As discussed above, adjudicators’ understanding of sexuality is such that membership in the social group of homosexuals unites its members and their experiences enough to collectively place them at risk of persecution; therefore, just as it is useful to present a version of queer identity that is in line with adjudicators’ perceptions, it is useful to trot out a narrative of persecution that will resonate with them too.[45]

The Real ID act states that the identity characteristic must be a “central reason” for persecution. In a landscape where the identity characteristic of queerness is fixed, immutable, and fundamental, however, the line between queer identity as a central reason for persecution and persecution as a central part of queer asylee identity blurs. Like most, if not all, asylum seekers, queer asylum seekers have endured and survived incredibly difficult ordeals. These events and these experiences of trauma, however, vary widely, and are as unique and nuanced as the applicants themselves. Nevertheless, when there is a single narrative of fundamental homosexuality, it serves to equate the identity with the persecution.[4

Wounded Attachments

The conflation of these factors has a number of troubling results. It is helpful to look once again to the case of Shahinaj, who was not considered effeminate enough to fall within the particular social group of homosexual. The other possible side to a case like this is that even if a claimant like Shaniaj is considered part of the particular social group, adjudicators may still read a claimant’s lack of effeminacy, or ability to “cover” and avoid severe mistreatment as an indication that homosexuals are not sufficiently persecuted as a group.[48] Jose Salked, a gay man from Peru, was denied asylum on these very grounds. The immigration judge, and later the BIA, found that “there are no criminal penalties for homosexuals in Peru” and that while “living an openly homosexual lifestyle in Peru may provoke a reaction from private citizens or the police, … Salkeld did not reveal his status while living in Peru and there are no laws requiring homosexuals to register with the government.”[49] The judge also pointed out that just as there are places in the United States that are safer than others, there are some areas in Peru where queer men can live safely, implying that if Salked could successfully hide his sexuality and live in a “more tolerant” area, he could avoid risk of attack.[50]  Thus, in a case like Salked’s, an applicant’s credibility as to his sexuality is not what is at issue, as it was with Shanijah. Instead, it is his supposed ability to avoid persecution that either results in a finding that maltreatment is not sufficient to reach the level of persecution of the group, or, more interestingly, forces him outside of the social group category altogether.[51]

Asylum claims are hardly the only times queer people, as a social group, are imagined as wounded subjects.  In Feeling Backward: Loss and the Politics of Queer History, Heather Love writes, “The history of western representation is littered with corpses of gender and sexual deviants.” It hardly feels like an exaggeration; we see this trope deployed in both cultural representations of queer characters as well as in case law, most notably in the string of marriage equality cases that discuss woundedness as directly oppositional to dignity  This language of injury going hand-in-hand with queer identities echoes Wendy Brown’s argument that identity politics may deepen a group’s reliance on “wounded attachments.”[54] She explains:

In locating a site of blame for its powerlessness over its past— a past of injury, a past as a hurt will— and locating a “reason” for the “unendurable pain” of social powerlessness in the present, it converts this reasoning into an ethicizing politics. . . . Politicized identity thus enunciates itself, makes claims for itself, only by entrenching, restating, dramatizing, and inscribing its pain in politics . . . . [55]

The overarching worry is that when past injuries play a significant part in forming group identity, the group may become dependent to these wounds to keep its shape and remain legally cognizable.[56]

Although some queer asylum claimants undoubtedly manage to craft affidavits that underscore empowerment and strength amidst persecution, countless others rely on a steady and uncomplicated refrain of violence, sexual abuse, rejection, and shame to make their claim. Indeed, this is a tried and true— and therefore strategically valuable— course of action, although not without its attenuating costs. Brown ultimately suggests a wounded subject “engage in something of a Nietzschean ‘forgetting’ of this history” in order to avoid entrenching themselves in a wounded subjectivity, but the very structure of the asylum process makes this a nearly impossible feat.[57]  An asylum seeker must be ready to repeat their story countless times, to attorneys, social workers, interpreters, and adjudicators. This is true for claimants on all grounds, but sexual orientation claims are arguably “unique in the sense that extremely private experiences infuse all aspects of the claim,” which means feelings of pain, shame, and woundedness “manifest distinctively” in these claims.[58] There is no room for forgetting. In fact, the reality of the queer asylum seekers is that their “dreams for the future are founded on a history of suffering, stigma, and violence.”[59]

Another way in which the emphasis of persecution as a fundamental part of the queer asylee identity is problematic is the way in which it allows Western countries to preserve a sense of cultural superiority as it shapes the dialectic around what it looks like to be a queer asylum seeker.[60] Courts look most favorably upon the sort of persecution that is both severe and straightforward; when persecution begins to resemble what a queer person in the United States could conceivably experience, asylum is typically denied Victoria Nielsen, Legal Director at Immigrant Justice Corps furthers, “You’d ask, could this happen in the United States? If the answer is yes, there’s no asylum claim.”[62] Queer asylees, it seems, must be Western enough to be easily legible while remaining sufficiently other so as to not create any anxieties or pose any difficult questions about the United States’ own treatment of queer individuals.  Rather, the identity of persecuted homosexual is coopted, and used in a sort of homonationalist project to support the state’s idea of its own exceptionalism.[63] A fundamental and uncomplicated homosexual identity that is built on a queer asylee’s injury at the hands of foreign (un-American) subjects is particularly useful in furtherance of this goal.

Perhaps there is a certain power in claiming a history of injury and using it is to move through the asylum process. The wounded body can be used as a way to communicate pain, and demand its acknowledgment. Pain becomes an important currency for those who are otherwise shut out of a larger economy of power, as asylum seekers often are. Nevertheless, deploying trauma in this way seems to confirm Brown’s anxiety about a group’s dependency on its “wounded attachments” to remain cohesive.[64] If adjudicators have set a precedent in asylum law that favors a narrow and essentializing homosexual experience that is informed by persecution, utilizing these tropes to establish a credible fear of persecution and membership in a particular social group is the surest avenue toward asylum. In reinscribing this narrative of wounded and monolithic homosexuality in the asylum process, however, we are turning stereotypes based on quiet homophobia and misinformation into law.


[i]            Throughout this article, I use both “queer” and “homosexual” to discuss asylum claims. While the latter hardly reflects the complex matrix of gender and sexuality that might inform identity, it is the word most often seen in legal discourse, and will therefore be utilized in reference to existing case law and legal norms.

[ii]           McClure, Heather, Chris Nugent, and Lavi Soloway. Preparing Sexual Orientation-Based Asylum Claims: A Handbook for Advocates and Asylum Seekers. Midwest Human Rights Partnership for Sexual Orientation and the Lesbian and Gay Immigration Rights Task Force, 2000. ( )

[iii]           Ibid., 10

[iv]           Ibid., 10

[v]            8 U.S.C. § 1101(a)(42)(A) (2005); See Immigration Equality Asylum Manual,

[vi]           In re Toboso-Alfonso, 20 I. & N. Dec. 819 (B.I.A. 1990). (

[vii]          See In re A-M-E-& J-G-U-, 24 I. & N. Dec. 69, 74-75 (B.I.A. 2007); In re C-A-, 23 I. & N. Dec. 951, 957, 959 (B.I.A. 2006).

[viii]          Supra, note 7.

[ix]           In re Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985)

[x]           Sarah Hinger, Finding the Fundamental: Shaping Identity in Gender and Sexual Orientation Based Asylum Claims, 19 Colum. J. Gender & L. 367 (2010).


[xi]           Ibid., 372.

[xii]          Deborah A. Morgan, Comment, Not Gay Enough for the Government: Racial and Sexual Stereotypes in Sexual Orientation Asylum Cases, 15 Law & Sexuality 135, 139 (2006). (

[xiii]          Bowers v. Hardwick, 478 U.S. 186, 190-96 (1986).

[xiv]          Sonia Katyal, Exporting Identity, 14 Yale J.L. & Feminism 97, 102-03 (2002).

[xv]          Morgan Supra, note 13, 151; Jane S. Schacter, The Gay Civil Rights Debate in the States: Decoding the Discourse of Equivalents, 29 Harv. C.R.-C.L. L. Rev. 283, 285 (1994).

[xvi]          Supra note 11, 387.

[xvii]         Ibid.,386.

[xviii]         8 C.F.R. §208.13(a) (2005) (; Laurie Berg & Jenni Millbank, Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum Claimants, 22 J. REFUGEE STUD. 195, 197 (2009).

[xix]          Eric Fassin & Manuela Salcedo, Becoming Gay? Immigration Policies and the Truth of Sexual Identity, Arch Sex Behav, vol. 44, 1117-25 (2015).

[xx]          Ibid.

[xxi]          John D’Emilio, Sexual Politics, Sexual Communities: The Making of a Homosexual Minority in the United States, 1940-1970, 35-46 (University of Chicago Press, 2d ed. 1998); Russel K. Robinson, Racing the Closet, 61 Stan. L. Rev. 1463. (2009). (

[xxii]         Marina Jimenez, Gay Refugee Claimants Seeking Haven in Canada: Bogus Applications Partly Account for Surging Number, Refugee Experts Say, Globe & Mail (Toronto), Apr. 24, 2004, at A7. (

[xxiii]         Keith Southam, Who am I and Who Do You Want Me to Be?: Effectively Defining A Lesbian, Gay, Bisexual, and Transgender Social Group in Asylum Applications, 86 Chi.-Kent L. Rev. 1363 (2011); C-A-, 23 I. & N. Dec. at 956, 960. (

[xxiv]         Supra, note 11, 389.

[xxv]         Kenji Yoshino, “Covering,” Yale Law Journal 111, no. 796 (2002). (

[xxvi]         Shahinaj v. Gonzales, 481 F.3d 1027, 1028 (8th Cir. 2007).

[xxvii]        Ibid.; Southam Supra, note 24, 1379.

[xxviii]        Mockeviciene v. Att’y Gen., 237 F. App’x 569 (11th Cir. 2007).

[xxix]         Ibid., 572-73.

[xxx]         Morgan, Supra, note 13, 147; Muneer I. Ahmad, The Ethics of Narrative, 11 Am. U. J. Gender Soc. Pol’y & L. 117, 122 (2002). (

[xxxi]         Supra note 13 at 154.

[xxxii]        Supra note 23, A7.

[xxxiii]        Supra, note 20, 1120.

[xxxiv]        Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge1990), 23.

[xxxv]       Ibid.

[xxxvi]        Tavera Lara v. Att’y. Gen., 188 F. App’x 848, 855 (11th Cir. 2006).

[xxxvii]       Ibid.; Hinger Supra, note 11, 391.

[xxxviii]       Supra note 11, 392.

[xxxix]        Supra, note 35.

[xl]           Supra, note 19, 198.

[xli]          Nicole LaViolette, The UNHCR’s Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity,AM. SOC’Y INTL. L. INSIGHTS, July 30, 2009, intro.

[xlii]          Ibid.

[xliii]          Ibid.

[xliv]         Supra, note 19, 198.

[xlv]          Supra, note 11, 367.

[xlvi]         Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005).

[xlvii]         Supra, note 11, 371.

[xlviii]         Supra, note 11, 396.

[xlix]         Salkeld v. Gonzales, 420 F.3d 804, 806 (8th Cir. 2005).

[l]            Ibid.

[li]           Supra note 11 at 398.

[lii]           Heather Love, Feeling Backward: Loss and the Politics of Queer History (Cambridge, MA: Harvard University Press, 2009), 2.

[liii]           See U.S. v. Windsor, 133 S. Ct. 2675 (2013); Obergefell v. Hodges, 576 S. Ct. (2015)

[liv]          Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton, NJ, United States: Princeton University Press, 1995), 50-55.

[lv]           Ibid.,74.

[lvi]          Ibid.

[lvii]          Ibid., 55.

[lviii]          Supra, note 19, 196.

[lix]          Supra, note 53.

[lx]           Hinger, Supra note 11, 398; Gregor Noll, Asylum Claims and the Translation of Culture into Politics, 41 TEX. INT’L L.J. 491, 493 (2006).

[lxi]          Supra, note 50

[lxii]          Hollis V. Pfitsch, Homosexuality in Asylum and Constitutional Law: Rhetoric of Acts and Identity, 15 LAW & SEXUALITY 59, 75 (2006); Hinger, Supra, note 6, 398;

[lxiii]          Katherine Franke, Dating the State: The Moral Hazards of Winning Gay Rights, 44 Colum. Hum. Rts. L. Rev. 1 (2012).

[lxiv]         Supra, note 55.

E.g. Michael Pollan, The Omnivore’s Dilemma: A Natural History of Four Meals (New York: Penguin, 2006), 99-100.

And a later note:
Pollan, Omnivore’s Dilemma, 3.