As per the United Nations High Commissioner for Refugees (“UNHCR”), at least half of all forcibly displaced people are women; however, traditional jurisprudence on migration and refugee law has been from a distinctly male gaze, leading to a direct exclusion of the experiences of women and queer persons. This exclusion has consequently led to a ‘gender blindness’ in international legal frameworks on refugees and migrants. With the emergence of the concept of mixed migration, which covers a broader spectrum of drivers than the ones defined relatively narrowly under the term refugee, it is now possible to examine the intersectional and intertwined causes for people’s movement. Sexual and gender-based violence (“SGBV”) leading to gender-related persecution is a perfect example of this, as neither the term gender, nor sex is recognised as a protected ground to seek asylum under international refugee law. However, it is a major contributor to women’s and queer persons movement as migrants, refugees, and internally displaced persons.
Gender as a Ground for Persecution
The United Nations Convention Relating to the Status of Refugees, 1951 (“1951 Convention”) is the primary international legal instrument that provides protection to persons who are forced to flee their homes due to a well-founded fear of persecution. Article 1A(2) of the 1951 Convention lists several protected characteristics which become grounds for persecution, such as race, religion, nationality, membership of a particular social group or political opinion, but, does not include sex or gender among them, which plainly points to the fact that the 1951 Convention’s definition of refugee is gender blind.
The term ‘gender-related persecution’, while being a recognised term in discourse on refugee law, does not have a legal meaning or definition. ‘Persecution’ has not been defined under the 1951 Convention either, and does not have a universally accepted legal definition, which creates further ambiguity in the classification of asylum claims on the basis of gender-related persecution. Such claims have often comprised of but aren’t limited to SGBV, including intimate partner violence and familial violence, regressive traditional/cultural practices, punishment for non-conformity to accepted and conventional social norms, and discrimination and violence against queer individuals.
The 1951 Convention’s definition of ‘refugee’ fails to understand that different genders experience persecution in different ways. Hence, it is necessary that the Convention receives a gender-sensitive and gender-inclusive interpretation. Therefore, it wouldn’t be incorrect to posit that this gender blindness that the Convention suffers from has inadvertently led to the formation of an artificial standard through whose lens refugee and asylum claims are viewed, namely, the ‘adult male standard’, and thus, claims fitting in this framework only tend to be viewed as legitimate claims of persecution. By not taking into account the differences in persecution and not acknowledging the specific forms of persecution suffered only by women and/or queer individuals, the present definition under the 1951 Convention ends up granting recognition and legitimizing the persecution that meets this artificial threshold created solely from a framework of male experiences. Thus, women migrants and asylum seekers principally face a two-layered issue. First, the failure of the State to incorporate the gender-related claims of women and queer refugees into their interpretation of the existing grounds enumerated under the 1951 Convention and, second, the failure to recognize the political nature of seemingly private acts of harm to women. Domestic violence (“DV”) perfectly exemplifies this problem, as it is frequently characterized (not necessarily legally) as ‘someone’s private matter’ rather than being seen in the light of being an acute public harm, and a matter of public concern caused due to widespread structural issues. This characterisation thereby delinks women’s interests from the ‘common good’ i.e., the public’s interest, and consequently the State’s interest as well. An example of this can be seen in the United States’ denial of asylum in 1999 to Rodi Alvarado Peña, a Guatemalan woman who suffered from severe and continuous sexual and physical abuse at the hands of her husband. The U.S. Board of Immigration Appeals reasoning in this case was that she was ineligible for refugee protection because the abuse she suffered resulted from personal circumstances that lacked larger societal relevance, even though the state failed to protect her despite the fact that she had approached the police. Thus, the persistent prevalence of the public-private sphere dichotomy is a major obstacle in granting international recognition of refugee women on the grounds of gender-related persecution.
This large-scale acceptance of SGBV as a ‘fact of life’ or every-day occurrence that is suffered by women across race, ethnicity and nationality gives rise to the belief that while SGBV indeed cannot be condoned and is an extreme form of discrimination against women, it does not rise to the level of ‘persecution’, and therefore, does not meet the established standard of ‘well-founded fear of persecution’.
Understanding Women as a ‘Particular Social Group’ (PSG)
To make a claim for gender-related persecution under international refugee law, it is first necessary that women are viewed as a PSG which is an enumerated ground under the 1951 Convention’s definition. Discourse on this topic has grown over time, and in 1985, the UNHCR Executive Committee’s Conclusion No. 39 recognised that States were free to adopt the interpretation that women asylum-seekers who faced harsh or inhuman treatment due to their having transgressed the social mores of the society in which they lived may be considered as a PSG within the meaning of Article 1 A(2) of the 1951 Convention.
The 2004 EU Directive under Article 10 (Reasons for Persecution), defined a PSG as members of a group that share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and the group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Rape, forced sterilisation, forced abortion, domestic violence, bride-burning, forced and child marriage, honour killings, female genital mutilation (FGM/C), the risk of girls undergoing FGM/C, trafficking, dowry-related violence, corrective rape, and violence against queer women are all extreme forms of violence that are regularly committed against and experienced by women. The primary reason that makes women a target of these acts of violence is because they are women. Therefore, it can reasonably be inferred that membership of women to the PSG of ‘women’ is the rationale for their experiencing these violent acts.
The international legal order’s reluctance to recognise women as a PSG on whose basis refugees can seek asylum is well documented, and the quest to recognise gender as a legitimate basis of persecution has been a hard fought one. Fortunately, a few jurisdictions around the world have now started recognising these gendered dimensions and granted recognition to this ground as can be seen by the Canadian Supreme Court’s judgement, Canada v. Ward, in 1993 which clearly demarcated the categories that constitute a PSG, which included – groups defined by an innate or unchangeable characteristic; that ‘gender’ certainly falls under. Further, countries such as Czech Republic, Italy, Germany, Spain, and Sweden have explicitly recognised ‘sex’ or ‘gender’ as specific PSGs in their respective domestic legislation on refugee protection. The US Court of Appeals for the First Circuit in Jaceyls Miguelina de Pena-Paniagua v. William P. Barr also affirmed the domestic violence asylum claim by a Dominican woman on the grounds of constituting a PSG in 2020.
Arguments against recognition of women as a PSG usually cite the size of the group as the basis for refusing to recognise ‘women’ generally as a PSG. However, this argument has no basis in fact or reason as it is not applied to other Convention grounds such as race or religion, which are not bound by the question of size.
Towards Gender Sensitive Interpretation of International Refugee Law
The Committee monitoring compliance with the Convention for the Elimination of Discrimination against Women (CEDAW Committee) in its General Recommendation No. 32 in 2014 noted that ‘gender-related forms of persecution are forms of persecution that are directed against a woman because she is a woman or that affect women disproportionately’. Principle 23(A) of the Yogyakarta Principles places an obligation on states to, review, amend and enact legislation to ensure that a well-founded fear of persecution on the basis of sexual orientation or gender identity is accepted as a ground for the recognition of refugee status and asylum, which States ought to seriously consider. The Yogyakarta Principles plus 10 further advocate for the acceptance of a well-founded fear of persecution on the basis of gender identity, gender expression or sex characteristics as a ground for the recognition of refugee status.
Along with legislative changes recognising sex and gender identity as explicit grounds for protection in international legal frameworks and national legislations of countries, it is also crucial that measures making the asylum process gender sensitive are adopted, for which guidance can be sought from the UNHCR Guidelines. International legal frameworks ought to explicitly recognise women as a PSG, take cognizance of gender related persecution as a distinct ground for migration and provide women and other vulnerable communities the support they need to realise the guarantees provided by human rights frameworks.
Avanti Deshpande is a graduate of ILS Law College, Pune. Her research interests include human rights law, public international law, constitutional law, and gender studies.
Image: Bordeaux edizioni (modified).