Why Gender Should Be Grounds for Asylum
A Binder Full Only of Men?
The case of Rahaf Mohammed has brought to the fore a persistent problem with the Refugee Convention and humanitarian law more generally: a systemic bias against women. When the 1951 Refugee Convention was drafted, gender persecution was thought not to be an issue of public concern. Despite the fact that Elinor Roosevelt sat on the drafting committee, I don’t believe the issue of gender persecution was ever raised during the negotiations. At that point in time, most countries persecuted women in a number of ways, many of them life threatening, but as women continued to occupy a quasi-legal state and a twilight zone of person hood, the idea that a woman could flee her country and be given asylum in another on account of gender persecution would likely have been thought bizarre by most people at the time.
Once laws are written, it is very difficult to change them, particularly a law like the Refugee Convention which has never been taken up by the International Court of Justice and does not have a formal amendment procedure. We’re basically stuck with it the way it is. That’s while LGBTQ men, trans people and women of all sexual orientations must fall back on the “other social group” category when claiming asylum on account of their gender and/or sexual orientation. And the problem with “other social group” is that it is vague and, therefore, subject to manipulation by courts and governments. We have essentially ceded control of these cases to the courts, which have come up with radically different views in different countries, and sometimes within the same country.
Increasingly, going against gender norms is being seen by courts as evidence of a political opinion, but this has the tendency of elevating visible and politically active women’s right to asylum over the rights of dis empowered women. A woman fleeing domestic violence by her husband in a country where domestic violence is legal is usually not seen as engaging in politics, even though there is something innately political in refusing to live in a system where you are treated as a non-human. The exclusion of this sort of act from the realm of the political follows centuries of treating women as inherently a-political persons, divorced from the world of political action and reaction. Interestingly, in such cases, it is frequently the perpetrator who is viewed as having a political opinion about women, while the victim is viewed as simply reacting to this opinion, rather than holding an opposing opinion.
In 1967, the Refugee Convention was amended in certain key ways by a Protocol, which has been ratified by many countries. It may be time to consider introducing another Protocol adding “gender” as a basis for a well-founded fear. Such a Protocol is unlikely to pass, but it would force states to take a position on gender persecution and, in countries where it was adopted, place women and LGBTQ persons on an equal footing with others. It would force states to consider the toll of gender persecution around the world in terms of the number of persons who might be eligible for protection and it would bring western countries face to face with their own systems of persecution. Sometimes the practice of putting a law before the international system has value in and of itself.
