INFORMATION
Gender is a social relation that enters into and partially constitutes all other social relations and identities. Women’s experiences of persecution and the asylum determination process will also be shaped by differences in race, class, sexuality, age, marital status, sexual history and so on. Looking at gender, as opposed to sex, allows for an approach that can take into account specificity, diversity and heterogeneity. Gender-related persecution refers to the experiences of women who are persecuted because they are women, i.e. because of their identity and status as women. Gender-specific persecution refers to forms of serious harm that are specific to women. However, the reasons for such persecution and the form it takes may overlap. Persecution through sexual violence must be strongly condemned, as it not only constitutes a serious violation of human rights and, when committed in the context of armed conflict, but is also a particularly serious affront to human dignity.
Persecution = serious harm + lack of state protection
Determining whether a person faces a risk of persecution requires identification of the serious harm they face in their country of origin and an assessment of the state’s ability and willingness to respond effectively to that risk. This can be expressed by the formula: persecution = serious harm + failure of state protection. Women often experience persecution differently from men. In particular, they may be persecuted through sexual violence or other gender-specific or gender-related persecution. Such violence should be interpreted broadly and can be defined as any act of gender-related violence that results or is likely to result in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.
Violence against women should be understood as, but not limited to:
- physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, extramarital violence and violence related to exploitation;
- physical, sexual and psychological violence occurring in the general community, including rape, sexual abuse, sexual harassment and intimidation in the workplace, educational institutions and other settings, trafficking in women and forced prostitution;
- physical, sexual and psychological violence committed or condoned by the state, wherever it occurs.
Discrimination amounting to persecution
In many societies there are, to a greater or lesser extent, differences in the treatment of different groups. People who are treated less favorably as a result of these differences are not necessarily victims of persecution. Discrimination in itself is not sufficient to establish a case for refugee status. A distinction must be made between human rights violations and persecution. Not every violation of an asylum seeker’s human rights constitutes persecution. Only in certain circumstances will discrimination amount to persecution. This will be the case if the discriminatory measures lead to consequences of a substantially prejudicial nature for the person concerned. However, discrimination can affect individuals to varying degrees and the impact of discriminatory measures on women must be recognized and given due weight. Different acts of discrimination, through their cumulative effect, can deny human dignity in essential ways and should be properly recognized as persecution under the 1951 Convention. Significant for gender-related claims is also an analysis of forms of discrimination on the part of the State in not extending protection to individuals against certain types of harm. If the State, as a matter of policy or practice, does not grant certain rights or protection against serious abuses, then discrimination in extending protection that results in serious harm inflicted with impunity could constitute persecution.
Persecution because of one’s sexual orientation
Asylum claims based on different sexual orientation contain a gender element. An applicant’s sexuality or sexual practices may be relevant to an asylum claim if they have been subject to persecution (including discrimination) because of their sexuality or sexual practices. In many such cases, the applicant has refused to adhere to socially or culturally defined roles or behavioral expectations attributed to their sex. The most common claims involve people of homosexual, transgender or transvestite orientation who have faced extreme public hostility, violence, abuse or serious or cumulative discrimination. Where homosexuality is illegal in a particular society, imposing severe criminal penalties for homosexual behavior could amount to persecution, as with the refusal of women to wear the veil in some societies. Even where homosexual practices are not criminalized, a complainant could still establish a valid claim if the state condones or tolerates discriminatory practices or harms committed against him or her, or if the state is unable to effectively protect the complainant from such harms.
Failure of State Protection
While persecution can be defined as a sustained or systemic violation of fundamental human rights that demonstrates a lack of protection by the state, the refugee definition does not require the state itself to be the agent of harm. Persecution by “private” or non-state agents of persecution also falls within the definition. The failure of the state to protect the individual from persecution constitutes a failure of local protection.
There are four situations in which a failure of state protection can be said to exist:
- persecution committed by the state in question;
- persecution accepted by the state concerned;
- persecution tolerated by the state concerned;
- persecution that is not tolerated or tolerated by the state concerned, but still present because the state either refuses or is unable to provide adequate protection.
State complicity in persecution is not a precondition for a valid asylum claim.
