Chapter 7: Gender asylum law: providing transformative remedies?
Writing more than a decade ago, Deborah Anker pointed to the potential of expanding human rights standards to transform the practice of refugee law. Grounding the interpretation of refugee law in a human rights paradigm, she argued, has the potential to internationalize refugee law practice and to move beyond the constraints of domestic asylum adjudication proceedings. In the context of the evolving practice of gender asylum law, human rights activism on women’s human rights, gender and sexuality law, has been crucial in securing recognition of gender-related persecution. Such recognition has been uneven, however, with continuing difficulties faced in ensuring consistency at domestic levels. Landmark cases, including Shah and Islam, S395, HJ and HT, Khawar, Kasinga and Fornah have pushed the boundaries and extended the limits of refugee law. Empirical research suggests that positive decisions recognizing gender-related claims increased following these cases, at least in some jurisdictions. The UNHCR has revised its gender guidelines, its guidelines on sexual orientation and on particular social group asylum claims, drawing on the practice of diverse jurisdictions to reassert the relevance and transformative potential of refugee law. It continues to assert that gendered violations of human rights fall within the scope of the refugee definition and the protections of the 1951 Convention. The 2002 UNHCR Gender Guidelines note that the analysis of sex and gender in the context of refugee law has been expanded through the practice of states, the case law of domestic courts and academic writing.
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