What is gender? There is a tendency for the term ‘gender’ to be used synonymously with the term ‘sex’. ‘Gender’ is not the same as ‘sex’, which is biologically defined. ‘Gender’ is a concept which is used to refer to those characteristics of men and women which are socially rather than biologically determined. The use of the term gender emphasises that with the exception of their sexually distinct functions (childbearing and breastfeeding), everything that women and men do – and everything expected of them – can and does change over time and according to changing and varied political, economic, social and cultural factors.
A gendered approach focuses not on individual women and men but on the system which determines gender roles and responsibilities, access to and control over resources, and decision-making potentials. Gender relations, and therefore gender differences, are historically, geographically and culturally specific, so that what it means to be a woman or a man varies over place and time.
The importance of gender in the refugee context: Women’s experiences of persecution have tended to be excluded from the dominant interpretation of the 1951 Convention Relating to the Status of Refugees (‘the Refugee Convention’) for a number of different reasons. Many of these stem from the fact that the roles of men and women in the societies from which asylum seekers originate are different from those in the countries in which they seek protection. In many countries women suffer the same deprivation and harm that is common to other refugees. For example, they may be targeted because they are political activists, community organisers, members of women’s movements or persist in demanding that their rights or those of their relatives or community members are respected. In addition however, the experiences of women often differ significantly from those of men because women’s political protest, activism and resistance may manifest itself in different ways. For example:
Women may hide people, pass messages or provide community services, food, clothing and medical care;
The authorities in some countries exploit family relationships to intensify harm;
Women who do not conform to the moral or ethical standards imposed on them may suffer cruel or inhuman treatment;
Women may be targeted because they are particularly vulnerable, for example, those with caring responsibilities or young women who can easily be sexually abused;
Women may be persecuted by members of their family and/or community.
There is evidence that these women are sometimes unable to benefit equitably from protection under the Refugee Convention. The reasons are two-fold:
Procedural and evidential barriers prevent women’s access to the asylum determination process;
In interpreting the Refugee Convention, women’s experiences have been marginalised. For example, whilst overt expression of a political opinion through conventional means such as involvement in political parties may be considered as a basis for political asylum, less conventional forms of political resistance, such as refusal to abide by discriminatory laws or to follow prescribed rules of conduct, are often wrongly categorised as ‘personal conduct’.
In addition, decision-makers may ignore cultural and social prohibitions on women travelling or living alone, the ability of women being able to survive economically without family support in societies where women’s rights to work are curtailed, or they may face greater risks of harassment, exploitation and violence.
Gender-specific and gender-related persecution: It is important to understand the difference between gender-related persecution and gender-specific forms of harm.
The concept of women being persecuted as women is not the same as women being persecuted because they are women. The concept of gender-specific persecution addresses forms of persecution that are specific or more likely to happen to women including, for example, sexual violence, female genital mutilation, forced abortion and sterilisation and denial of access to contraception. Understanding the ways in which women are violated as women is critical to naming as persecution those forms of harm that only or mostly affect women.
To say that a woman fears persecution because she is a woman (gender-related persecution) addresses the causal relationship between gender (as socially constructed) and persecution. For example, sexual activity outside a socially condoned relationship may result in persecution. Gender-specific violations do not necessarily constitute persecution because of gender. For example, if a man’s genitals are subjected to electric shocks, he is being tortured in a gender-specific way, but it does not necessarily follow that he is being persecuted because of his gender rather he may be persecuted because of his political or religious identity or activities. Similarly many women experience gender-specific forms of persecution, including rape and sexual violence, because of their actual or imputed political or religious identity or activities. It is important not to assume that in all women experience gender-related persecution even where this persecution takes a gender-specific form. The reasons for the persecution are critical in establishing the appropriate Convention ground within the meaning of the Refugee Convention.
Interpreting women’s experiences of persecution
Proper interpretation of the Refugee Convention means taking account of the ways in which gender may shape the applicant’s experiences when assessing whether or not an individual is in need of international protection. This means establishing whether an applicant fears or has experienced ‘serious harm’, whether there is a failure of State protection and whether an applicant’s experiences are directly related to one of the grounds enumerated within the Refugee Convention.
There are many forms of harm that are more frequently or only used against women that may constitute serious harm and, if combined with a failure of state protection, rise to the level of persecution. Such persecution, if for a Convention reason could result in the woman being recognised as a refugee.
Gender-specific forms of persecution include, but are not limited to:
Violence within the family or community;
Female genital mutilation;
Sexual violence and abuse and rape.
Gender-specific harm is not different from other forms of ill treatment and violence that are commonly held to amount to persecution. The fact that violence against women is common and widespread in a particular society does not mean that it cannot amount to persecution. Each case should be considered on its own merits against country information and not disregarded because such treatment is common and widespread.
Some forms of harm can have implications beyond the physical, social and psychological consequences with which they are most obviously associated. Sexual violence in particular carries traumatic social repercussions which may be affected by a woman’s cultural origins or social status. These may include, but are not limited to, rejection by (or of) the spouse and by family or community members, stigmatisation or ostracism by the wider community, and punishment and/or deprivation of education, employment and other types of assistance and protection. Where a victim of sexual violence may have no alternative but to marry her attacker or become a prostitute, these are also human rights violations. Social and cultural norms regarding appropriate gender roles and behaviour may mean that lesbians face violations of their human rights. Lesbians may experience different forms of ‘serious harm’ than those characteristically targeted at gay men. For example, many lesbians have effectively been denied the right to sexual orientation because they have been forced into marriage.
In addition there are certain discriminatory measures which, in themselves or cumulatively with others may amount to persecution. For example, if the discrimination has consequences of a substantially prejudicial nature for the person concerned, this may amount to persecution. Examples of such discrimination, some of which can be seen more often to affect women, include:
• Serious restrictions on rights to earn a livelihood;
• Restrictions on political enfranchisement;
• Restrictions on whether to practise or not practise a religion;
• Restrictions on access to public places;
• Restrictions from normally available educational, legal, welfare and health provision
Women may be subjected to discriminatory treatment that is enforced through law or through the imposition of social or religious norms that restrict their opportunities and rights. This can include, but is not limited to:
• Family and personal laws;
• Dress codes;
• Employment or education restrictions;
• Restrictions on women's freedom of movement and/or activities.
Such restrictions may in themselves constitute ‘serious harm’. For example, dress codes may violate a woman’s right to freedom of conscience, expression or religion, either in themselves or because of the consequences of the refusal, failure or inability to comply. A broad range of penalties may be imposed for disobeying restrictions placed on women. Such penalties will often constitute ‘serious harm’, particularly where the level of punishment for violating discriminatory norms is disproportionately severe.
Failure of state protection
In addition to establishing a well-founded fear of ‘serious harm’, a woman must also show that the state has failed to protect her. A failure of state protection exists in the following situations:
• If ‘serious harm’ has been inflicted by the authorities or by associated organisations or groups or;
• If ‘serious harm’ has been committed by others and the authorities are unwilling to give effective protection or;
• If ‘serious harm’ has been committed by others, and the authorities are unable to give effective protection.
• Conduct by those associated with the state, including sexual violence, is the responsibility of the state. The existence of particular laws or social policies/practices (including traditions and cultural practices) or the manner in which they are implemented may themselves constitute or involve a failure of protection. Thus, for example:A law, policy or practice could be inherently persecutory; or
• It may have a ‘legitimate’ (for example, population control) goal but be administered unfairly in a discriminatory fashion or through persecutory means; or
• The penalty for non-compliance with the law or policy may be disproportionately severe against certain persons/groups
Women may be subject to gender-related abuse resulting from social customs or conventions because there is no effective means of legal recourse to prevent, investigate or punish such acts. Such failure of state protection may occur but is not limited to, legislation (e.g. marital rape exemptions in law), lack of police response to pleas for assistance and/or a reluctance, refusal or failure to investigate, prosecute or punish individuals and encouragement or toleration of particular social/religious/customary laws, practices and behavioural norms or an unwillingness or inability to take action against them. State protection must be meaningful, accessible, effective and available to a woman regardless of her race, ethnicity, sexual orientation, disability, religion, class, age, occupation or any other aspect of her identity. In some cases there may be protection in theory, but actual practice must be examined. Corroborative evidence will not always be available. It is not always reasonable or possible for a woman to alert the authorities to her need for protection, for example, if by doing so she risks violence, harassment or rejection by her society or even persecution. The implications of gender in determining the reasonableness of an internal flight alternative should also be recognised in decision making.
The question to be asked in deciding whether it is reasonable to expect an asylum seeker to relocate is: would it be unduly harsh for the asylum seeker to relocate within their country of origin? The caseworker may need to take into account the implications of gender in determining the reasonableness of an internal flight alternative. For example, in certain countries, financial, logistical, social, cultural and other factors may result in particular difficulties for women or for particular women e.g. widows or single parents. Women may have family ties i.e. children which may have a bearing on the reasonableness of internal flight.
The Convention grounds
In the absence of gender as an enumerated Convention ground within the Refugee Convention there is considerable debate about how women experiencing gender-related persecution can be protected under international law. It is important to understand that women’s claims for asylum can, more often than not, be properly recognised within the meaning of the Convention if their experiences are properly understood within the social and political context within which they occur. This is made clear in the international guidance on how to interpret the Refugee Convention provided by UNHCR:
Even though gender is not specifically referenced in the refugee definition, it is widely accepted that it can influence, or dictate, the type of persecution or harm suffered and the reasons for this treatment. The refugee definition, properly interpreted, therefore covers gender-related claims. As such, there is no need to add an additional ground to the 1951 Convention definition. (UNHCR 2002 Guidelines on International Protection No. 1: Gender-Related Persecution, paragraph 6)
Whilst actual or attributed racial identity is not specific to women, it may operate in tandem with gender to explain why a woman fears persecution. For example, whilst the destruction of ethnic identity and/or prosperity of a racial group may be through killing, maiming or incarcerating men, women may be viewed as propagating ethnic identity through their reproductive role, and may be persecuted through, for example, sexual violence or control of reproduction.
A woman may face harm for her adherence to or rejection of a religious belief or practice. Religion as the ground of persecution may include but is not limited to, the freedom to hold a belief system of one's choice or not to hold a particular belief system and the freedom to practise a religion of one's choice or not to practise a proscribed religion.
Where the religion assigns particular roles or behavioural codes to women, a woman who refuses or fails to fulfil her assigned role or abide by the codes may have a well-founded fear of persecution on the ground of religion Failure to abide by the behavioural codes set out for woman may be perceived as evidence that a woman holds unacceptable religious opinions regardless of what she actually believes about religion.
A woman's religious identity may be aligned with that of other members of her family or community. Imputed or attributed religious identity may therefore be important.
There may be considerable overlap between religious and political persecution For example, where the state supports or favours a particular religious persuasion or tolerates or otherwise fails to provide protection against the activities of non-state agents who are supporters of a particular religious persuasion.
The term 'nationality' does not only mean 'citizenship'. It can include membership of an ethnic or linguistic group and may overlap with 'race'.
Whilst actual or attributed national identity is not specific to women, it may operate in tandem with gender to explain why a woman fears persecution. Women may be deprived of full citizenship rights in certain circumstances, for example, if they marry a foreign national. In such circumstances it may be necessary to consider what harm results from this loss and whether it amounts to persecution on the basis of nationality.
Holding political opinions different from those of the government is not in itself a ground for refugee status. An applicant must show that they have a fear of persecution for holding such opinions. Persecution 'for reasons of political opinion' implies an applicant holds an opinion that either has been expressed or has come to the attention of the authorities There may however, also be situations in which the applicant has not given any expression of their opinions.
Persecution ‘for reasons of’ political opinion is typically seen in terms of male experience i.e. due to direct involvement in conventional political activity such as membership of a political organisation. Claims on these grounds will often involve an openly expressed opinion, which is directed against and is not tolerated by the state.
Whilst many women will be involved in such conventional political activities and raise similar claims this does not always correspond to the reality of the experiences of women in some societies. The gender roles in many countries mean that women will more often be involved in low level political activities for instance hiding people, passing messages or providing community services, food, clothing or medical care. Caseworkers should beware of equating so-called ‘low-level’ political activity with low-risk. The response of the state to such activity may be disproportionately persecutory because of the involvement of a section of society, namely women, who because of their gender it is considered inappropriate for them to be involved at all.
Involvement in such activities could be seen to imply that the person holds a political opinion, indeed such activities may be the outward expression of a political opinion although it is not necessary for a person to have formed a specific opinion in their own mind in order for their actions to imply that they hold a political opinion.
Furthermore a person may be attributed a political opinion that they do not actually hold. In these circumstances it is essential to look at what motivates the persecutor, as they will be attributing the political opinion to the individual. For instance a woman who is forced to provide food for a rebel group may be attributed a political opinion by the State even though she does not support the group.
It is important not to underestimate or overlook the political dimensions of a woman's experiences of persecution even though a woman may not regard herself as making a political statement. Non-conformist opinions or behaviour may in certain circumstances be the expression of a political opinion or may result in a woman having a political opinion attributed to her whether she holds one or not. For instance opposition to institutionalised discrimination against women in society can be seen to constitute a political opinion. Non-conformist behaviour in certain cultures such as refusing to wear a veil, pursuing an education or choosing a partner could also lead to a woman having a political opinion attributed to her.
Membership of a Particular Social Group (PSG)
Most women who are persecuted will be covered by other Convention grounds i.e. race, religion, nationality and political opinion, whether actual or imputed. However in some cases gender may be a factor in recognising membership of a particular social group or an identifying characteristic of such a group.
In 2002 UNHCR issued guidelines on the interpretation of membership of a PSG within the meaning of the Refugee Convention. These guidelines and existing case law indicate that particular social groups can be identified by reference to innate or unchangeable characteristics. Examples of such characteristics may include, but are not limited to, sex, age, marital status, religion, family and kinship, past economic status/class, occupational history, disability, sexual history and ethnic, tribal or clan affiliation. There are cases where women are persecuted solely because of their family or kinship relationships, for example, a woman may be persecuted as a means of demoralising or punishing members of her family or community, or in order to pressurise her into revealing information. An applicant need not show that the members of a PSG know each other or associate with each other as a group. Neither must an applicant demonstrate that all members of a PSG are at risk of persecution in order to establish the existence of that group in the perception of others.
The fact that the particular social group consists of large numbers of the female population in the country concerned is irrelevant. Race, religion, nationality and political opinion are also characteristics that are shared by large numbers of people.
Procedural issues can mean that gender issues may not come to light at an early stage in the determination process. Although some women asylum seekers arrive alone, others arrive as part of a family unit and are sometimes not interviewed or are cursorily interviewed about their experiences even when it is possible that they, rather than, or as well as, their male relatives, have been persecuted. Male relatives or associates may not raise relevant issues because they are unaware of the details or their importance or are ashamed to report them. It is important not to assume that a woman’s status is derivative: a woman’s claim to refugee status may in some cases be as strong as, or stronger than, that of her male relative or associate.
It is important that the right questions are asked during the interview in order that all of the information that is of relevance to the decision can be properly assessed. For example, interviewers should not focus their questions on narrowly defined political activities. Political activities also include, community activism, providing food or shelter, message taking, hiding people or refusing to conform to particular social norms. Women may also have a different perception of torture, which may not equate with the types of harm they fear, for example sexual violence, violence within the family, marriage-related harm, female genital mutilation and forced abortion and sterilisation. Ensuring that the right questions are asked during the interview will ensure familiarity with the status and roles of women in the applicant’s country of origin.
In addition interviewers should be aware of the need for culturally sensitive communication to ensure as much information about the basis of the application is available as is possible. Cultural and other differences and trauma can play an important role in determining demeanour i.e. how a woman presents herself physically, for example, whether she maintains eye contact, shifts her posture or hesitates when speaking.
Information to support a woman’s claim may not be readily available. Women’s experiences of persecution frequently differ from those of men and they may be unable to document their experiences. For example, they may not be able to provide membership cards or newspaper cuttings relating to their political involvement because they have been indirectly involved through a supporting role or because the political opinion has been imputed to them. Similarly, information about violence within the family or community may be difficult to find. Background reports and country information often lack analysis of the position and status of women. Statistical data on the incidence of sexual or other violence is often inadequate or lacking.
It is important that those working with, or representing, refugee women are familiar with the role, status, and treatment of women in the country from which a woman has fled. It is essential to consider a number of issues when gathering information. These include, but are not limited to:
• Position of women before the law including their standing in court, the right to bring a complaint and give evidence, divorce and custody law, the right to own property, reproductive rights, freedom to travel, and the political, social and economic rights referred to below;
• Political and civil rights of women including the right to vote, to hold office and belong to a political party;
• Social and economic rights of women including the right to marry the person of their choice, the right not to marry and the right to divorce, the right to determine their own sexuality, the right to an education, a career, and a job or remunerated activities, the status of single women, widows or divorcees, and freedom of dress;
• Consequences for women who refuse to abide by or who challenge social, religious or cultural norms regarding their behaviour including, for example, norms regarding virginity and pre-or extra marital sex or pregnancy, norms around the institution of marriage including arranged marriages and divorce, and norms about behaviour and dress;
• Incidence and form of violence against women such as, but not limited to, violence within the family, sexual abuse, honour killings, bride- burning;
• Efficacy of protection available to women and the sanctions or penalties on those who perpetuate the violence;
• Consequences that may befall a woman on her return.
Information about sources of country of origin information can be found here.
The UNHCR’s guidelines on international protection in cases involving gender-related persecution list a number of good practices in relation to gender-sensitive asylum procedures.
Towards a gender-sensitive approach
Although the Refugee Convention does not include an explicit reference to sex and/or gender, the importance of gender in shaping the experiences of refugees is increasingly recognised. Guidelines on the Protection of Refugee Women were first issued by UNHCR in 1991 and were followed in 1995 by guidelines specifically on responding to cases involving sexual violence. In 2002, UNHCR updated its guidelines (Guidelines on International Protection No. 1: Gender-Related Persecution) to include explicit reference to the ways in which gender should be taken into account when deciding whether an individual is in need of international protection. These guidelines are intended to provide legal interpretative guidance for governments, legal practitioners, decision-makers and the judiciary, as well as UNHCR staff carrying out refugee status determination in the field. Most recently, in 2008, the UNHCR produced a Handbook for the Protection of Women and Girls. This Handbook describes some of the protection challenges faced by women and girls of concern to UNHCR. It sets out the legal standards and principles that guide UNHCR’s work to protect women and girls and outlines the different roles and responsibilities of States and other actors.
UNHCR has also issued guidelines on membership of a particular social group, on the application of the Refugee Convention in cases involving those who have been, or are at risk of being, trafficked, and in relation to Female Genital Mutilation that may of relevance in some claims involving gender issues
A number of countries including Canada, the United States, Australia, Germany, Ireland, the Netherlands, South Africa, Sweden and the UK have now included explicit reference to gender or sex as grounds for refugee status in their domestic refugee legislation, or have recognised that particular forms of gender-related violence or harm constitute forms of persecution. In 1993 the Canadian government published the first national gender guidelines entitled Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution . The Canadian gender guidelines were subsequently updated in 1996 and have formed the template for many of the guidelines subsequently published in other countries including in the United States (1995), Australia (1996) and more recently Sweden, the Netherlands and South Africa. Web links to the gender guidelines produced in the UK and elsewhere can be found below. Detailed information about national legislation and policy relating to gender issues in the asylum claim can be found here.
Leading jurisprudence in many national jurisdictions has also recognised various forms of gender-related persecution as grounds for asylum. Links to important cases involving gender-related and gender-specific persecution can be found below.
UNHCR (1991) Guidelines on the Protection of Refugee Women
UNHCR (1995) Sexual Violence Against Refugees: Guidelines on Prevention and Response, Geneva: UNHCR
UNHCR (2002) Guidelines on International Protection No. 1: Gender-Related Persecution, Geneva: UNHCR
UNHCR (2002) Guidelines on International Protection No. 2: Membership of a Particular Social Group
UNHCR (2006) Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of Being Trafficked
UNHCR (2008) Handbook for the Protection of Women and Girls
UNHCR (2009) Guidance Note on Refugee Claims relating to Female Genital Mutilation
National gender guidelines
IRB (Canada) (1993) Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution
INS, United States (1995) Considerations for Asylum Officers Adjudicating Asylum Claims From Women
DIMA (Australia) (1996) Guidelines on Gender Issues for Decision Makers
Home Office (UK) (2004) Asylum Policy Instruction on Gender Issues in the Asylum Claim
Detailed information about gender guidelines and legislation in a number of other countries including South Africa, the Netherlands, Germany, Ireland and Costa Rica can be found at http://cgrs.uchastings.edu/law/gender_guidelines.php
Female Genital Mutilation
Fauziya Kasinga, 3278, US Board of Immigration Appeals, 13 June 1996
Khadija Ahmed Mohamed v. Alberto R. Gonzales, Attorney General, A79-257-632; 03-72265; 03-70803, US Court of Appeals for the Ninth Circuit, 10 March 2005, p. 157
Fornah (FC) (Appellant) v. Secretary of State for the Home Department (Respondent),  UKHL 46, UK: House of Lords, 18 October 2006
Ali Kamaleddin, Fatemeh Zokaei-Alamdari v. Immigration and Naturalization Service, Fed. R. App. P. 34(a); 9th Cir. R. 34-4, US Court of Appeals for the Ninth Circuit, 4 April 1994
Fornah (FC) (Appellant) v. Secretary of State for the Home Department (Respondent),  UKHL 46, UK: House of Lords, 18 October 2006
Family ostracism or victimisation as result of being trafficked
SB (PSG - Protection Regulations - Reg 6) Moldova v. Secretary of State for the Home Department (UK)  UKAIT 00002, UK: Asylum and Immigration Tribunal / Immigration Appellate Authority, 26 November 2007
Rape and sexual violence
Olimpia Lazo-Majano v. Immigration and Naturalization Service, A 24 345 083, US Court of Appeals for the Ninth Circuit, 9 June 1987
Raquel Martí de Mejía v. Perú, Case 10.970, Inter-American Commission on Human Rights (IACHR), 1 March 1996
Domestic violence and lack of state protection
Rosalba Aguirre-Cervantes a.k.a. Maria Esperanza Castillo v. Immigration and Naturalization Service, US Court of Appeals for the Ninth Circuit, 21 March 2001
Islam (A.P.) v. Secretary of State for the Home Department; R v. Immigration Appeal Tribunal and Another, Ex Parte Shah (A.P.), Session 1998-1999, UK: House of Lords, 25 March 1999
Minister for Immigration and Multicultural Affairs v. Khawar,  HCA 14, Australia: High Court, 11 April 2002
Death penalty for adultery
Jabari v. Turkey, ECtHR, Appl. No. 400035/98, 11 July 2000
Fatin v. Immigration and Naturalization Service, 12 F.3d 1233, US Court of Appeals for the Third Circuit, 20 December 1993, (although her claim was ultimately unsuccessful the Court of Appeal did recognised that ‘feminism’ was a political opinion for the purposes of the 1951 Convention)
Refugee Appeal No. 2039/93 Re MN, New Zealand: Refugee Status Appeals Authority, 12 February 1996
CRR, Sections réunies, Mlle Elkebir Nauta, 237939, France: Commission des Recours des Réfugiés (CRR), 22 July 1994