There is no set definition for the term “gender-based persecution”. The following definition is pieced together from a long report that has been released by the United Nations High Commissioner for Refugees, regarding the rights of individuals filing a claim for refugee status.
The discriminatory, oppressive, harmful or abusive treatment of an individual, based on their gender.
“Gender-based persecution” is a term that has does not exactly have a legal meaning; rather, it is used to encompass the range of different claims in which an individual’s gender is a relevant consideration in the determination of their refugee status (UNHCR, 2002, p.1).
The gender of an individual is based on socially and culturally constructed identities, status roles and responsibilities that are assigned to either the male or female sex (EDAL, 2004, p.1).
“In countries such as Iran, gender-based persecution takes the form of discriminatory national laws, such as honor killings and a husband’s right to kill his wife.”
The website of the United Nations High Commissioner for Refugees lists a basic list of what kinds of activity can be classified as “Gender-based persecution”. As listed on the site, gender-based claims generally encompass, but are not limited to (UNHCR, 2002, p.1)…
- Acts of sexual violence
- Family/Domestic violence
- Coerced family planning
- Female genital mutilation
- Punishment for transgression of social mores
- Discrimination against homosexuals
Haines, R. (2003, June). Gender-related persecution. Retrieved from http://www.refworld.org/docid/470a33b50.html (accessed on February 23, 2014)
Immigration and Refugee Board of Canada. (1996, November 13). Chairperson guidelines 4: Women refugee claimants fearing gender-related persecution. Retrieved from http://www.irb-cisr.gc.ca/Eng/BoaCom/references/pol/GuiDir/Pages/GuideDir04.aspx (accessed on February 23, 2014)
Nogradi, N. (2011). Gender-based violence, discrimination and persecution as a legal ground for asylum. Retrieved from http://www.academia.edu/1384272/Gender-based_Violence_Discrimination_and_Persecution_as_a_Legal_Ground_for_Asylum (accessed on February 23, 2014)
The Advocates for Human Rights. (2010, January). Gender-based asylum. Retrieved from http://www.stopvaw.org/gender-based_asylum (accessed on February 23, 2014)
Council of Europe: European Court of Human Rights. (2000, July 11). Jabari v. Turkey. Retrieved from http://www.refworld.org/docid/3ae6b6dac.html (accessed on February 23, 2014)
Cuomo, K. Female genital mutilation and immigration abuse. Retrieved from http://www.pbs.org/speaktruthtopower/fauziya.html (accessed on February 23, 2014)
European Database of Asylum Law. (2004). Retrieved from http://www.asylumlawdatabase.eu/en/keywords/gender-based-persecution (accessed on February 23, 2014)
UN High Commissioner for Refugees. (2002, May 7). Guidelines on international protection no. 1: Gender-related persecution within the context of article 1a(2) of the 1951 Convention and/or its 1967 protocol relating to the status of refugees. Retrieved from http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=3d36f1c64 (accessed on February 23, 2014)
Case law
U.S. DEPARTMENT OF JUSTICE BOARD OF IMMIGRATION APPEALS:
Case name: Matter of Kasinga, Judgement of 13 June 1996, File #A73 476 695 (Cuomo, K. Female genital mutilation and immigration abuse. Retrieved from http://www.pbs.org/speaktruthtopower/fauziya.html (accessed on February 23, 2014).
In December of 1994, the applicant, seventeen year-old Fauziya Kasinga fled from her remote village in Togo, Africa, under the cover of darkness. Just days earlier she had been promised to a grown man as his wife and was told she would undergo female genital mutilation immediately following the marriage (Cuomo, 2014, p.1). After fleeing her village by midnight, the young girl travelled to the United States of America to seek political asylum. After travelling through an absolutely nightmarish immigration system, Fauziya Kasinga became the first person to be granted political asylum to the U.S. based on the threat of female genital mutilation (Cuomo, 2014, p.1). This case opened the doors for other asylum seekers to file their claims on the basis of gender-based persecution in their home country, which includes, but is not at all limited to: forced marriage, rape and honour-related crimes. This case also pressed the U.S. Congress to pass a law formally criminalizing Female Genital Mutilation (FGM) in 1996, which ultimately fuelled a world-wide debate regarding FGM as a serious human rights abuse (Cuomo, 2014, p.2).
EUROPEAN COURT OF HUMAN RIGHTS:
European Court of Human Rights. Jabari v. Turkey, Judgement on 11 July 2000, Application no. 40035/98. Retrieved from http://www.refworld.org/docid/3ae6b6dac.html (accessed on February 23, 2014).
The applicant was an Iranian national by the name of Hoda Jabari, and the application was filed with the European Commission of Human Rights against the Republic of Turkey. The applicant met and fell in love with a man (“X”) while attending school, and they wanted to marry. X’s family was opposed to the match and he was married to another woman, although he and the applicant continued to see each other and have sexual relations after the marriage. While out together, X and the applicant were arrested and detained by policemen due to the fact that man X was married to another woman. After being released with the help of her family, the applicant entered Turkey illegally in fear of further persecution from her community. She then flew to Paris using a forged passport, but was stopped by airport security and flown back to Turkey. This case revolves around the issue of her deportation from Turkey back to Iran and the seriousness of the persecution she faced there. If deported, the applicant faced possible death by stoning in her home country in response to her adulterous behaviour.
Other related terms:
- Gendered relations
- Gender-based violence
- Sexual discrimination
- Refugee rights