The United Nations High Commissioner for Refugees’ (UNHCR) Guidelines on International Protection: Gender-related Persecution uses the term ‘gender-related persecution’ to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status.
“It’s also one that requires a revised understanding of how gendered identities are constructed and contested within refugee law,” says Faculty of Law Professor Jenni Millbank. “Women make up half the world’s refugees and, like men, can suffer persecution on any number of grounds, but gender-based claims make up a much smaller number. Nonetheless, the gender-based cases are influencing the way other cases are being decided by changing and expanding the refugee categories, and the way we think about things like state responsibility.”
It’s this interpretation and broadening of existing refugee law legislation that forms the basis of Millbank’s three-year research project: Gender Related Harms in Forced Migration. The comparative international study, funded under an Australian Research Council Discovery Project scheme is, looking at how refugee law has been transformed by gender, its relationship with human rights norms and the conceptual evolution of gendered identity.
“Gender-based or gender-related persecution covers sexual orientation, gender identity, HIV status as well as those that are more obviously about gender roles and norms,” says Millbank. She has been building on her research for over a decade with the help of more than 10 international collaborators including law experts, not-for-profit organisations and refugee support groups.
“When we think about gender-related persecution, we tend to think about women being persecuted usually because of domestic violence or female genital mutilation. Part of our project is actually saying it includes persecution of sexual minorities: gay, lesbian, bisexual or transgender individuals. Also, it covers both men and women who are non-conforming in ways that profoundly challenge prevailing social norms through feminist activism, rejection of dress codes or other key areas of gendered behaviour, like marriage.”
Millbank’s interest in this area came after she noticed a number of refugee claims were about forced marriage. “My colleague Katherine Fallah was working as an assistant on an earlier project and she noticed a number of gay men were saying they faced forced marriage. We decided it would be worth examining a set of cases to see how forced marriage claims play out for heterosexual women compared to gay men making those claims.”
Milbank and her collaborators are using key refugee receiving nations – the Netherlands, Germany, USA, the United Kingdom and Canada – as the basis for their case gathering on gender-related persecution. One of Millbank’s main collaborators is the University of British Columbia’s Professor Catherine Dauvergne, a specialist in refugee law.
“We’re aiming to do a full-scale global accounting of gender and refugee law; it’s very exciting but also ambitious,” says Dauvergne. “We now have a network of scholars and activists around the world supporting our research in different ways, and that network just keeps growing.”
There are currently five refugee categories in the 1951 Convention relating to the Status of Refugees: race, religion, nationality, political opinion and particular social group (PSG). Millbank says whereas women previously made up a small portion of PSG, the violations against them are transforming the classic model of what a refugee can be.
“Women are being beaten or raped by their husbands or being forced into marriage by their family members. These experiences of violence in the private sphere are seen as unfortunate things that happen to women, rather than being a matter of international law and concern.
“If you look at the early 90s, you have case after case of decision makers saying, ‘Well that’s not a refugee claim, that’s just a terrible thing that happened to a woman’. Now, through the process of re-envisaging the PSG, persecution and the nexus to the state, women experiencing domestic violence in a country like Bangladesh, for instance, are accepted as refugees because the state isn’t helping them.”
Different gender groups within PSG are continuing to shift and transform decision making, turning this group into the most dynamic and evolving aspect of the convention. Millbank says many of the gender guidelines in different countries specifically refer to women rather than men and don’t take into account things like sexuality or transgender status.
“The concept of gender identity is a complex one in particular for many decision makers to understand. It’s not as simple as people being born one sex and having an operation to ‘change’ to the other. Some claimants say ‘I am transsexual’, others might say, ‘I am gay and deep down I know I am a girl,’ or, ‘I have taken female hormones for years but have given up the life of a transgender’. Their gender expressions are varied across a hugely diverse continuum of non-conformity.
“My colleague Laurie Berg and I recently examined a set of all the available transgender cases in English around the world. We found if they were seen as just men or women, there were major errors in the reasoning. For example, if a decision maker looked at the claim of a male-to-female transsexual and analysed their risk of harm as if they were a man, they’d get it really wrong. If that person now lives as a woman and goes in to military service or a men’s prison, she’ll be in terrible danger.
“Equally, to treat her as a woman and assess her ability to seek state protection by looking at information about domestic violence policies aimed at women, more broadly, also fails to appreciate she’s very differently situated to other women.”
Transgender cases make up a very small proportion of the global movement of forced migration, but, Millbank says, “they reveal all kinds of forms of persecution and forms of protection that are about conformity to a particular social expectation.”
For the law researcher, a change in legislation isn’t so much the issue; Millbank acknowledges the convention has stood the test of time for 60 years and will continue to do so. She hopes her research will help decision makers better understand and interpret the convention’s categories and definitions.
“What’s difficult about this project is accepting that we’re looking at the tip of an iceberg. We know there are a lot of people whose cases are never going to be properly heard, but we can at least address the ones we can see and start there.”