Assessing Transgender Asylum Claims (original) (raw)
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Maria Avgeri, 2021
In this article, I focus on gender identity and gender expression as grounds for international protection. After clarifying issues of terminology and theoretical framework, namely Transgender Studies, I criticize the current framework for determining membership in a Particular Social Group (PSG) for the purposes of the Refugee Convention, drawing on Berg and Millbank's work on the concept of self-identification and gender non-conformity as a means to assess transgender asylum claims (2013). I problematize the issues arising in the assessment of well-founded fear of persecution and the form it may take in transgender and gender non-conforming asylum claims. Drawing connections between sexuality and gender identity/expression claims, I attempt to provide a humanizing and depathologized framework for assessing the credibility of transgender and gender non-conforming applicants. Finally, by critiquing the work of Hathaway and Pobjoy and drawing from current human rights norms, I reflect on how to make good law with transgender cases without reproducing medicalized notions of gender identity or placing all the burden of proof on the applicants. In so doing, this article attempts to achieve a balance between theoretical and practical challenges that arise in the Refugee Status Determination (RSD) process involving transgender and gender non-conforming applicants. This article serves as an attempt to critically review the existing scholarship within the framework of transgender studies and offers insights for a refined framework of refugee status determination based on an inclusive reading of Particular Social Group and persecution drawing on the reading of crucial case law from anglophone countries.
Freedom To Be: Assessing the Claims of LGBTQ Asylum Seekers
2013
In refugee status assessment, the process of proving the 'truth' of one's sexual orientation (and proving that one will be persecuted on account of this) is often infected by the cultural biases of individual decision-makers. Assessors may, for example, expect self-identifying homosexual or bisexual asylum seekers to act in a particular manner (conforming to Western assumptions about sexual behaviour or identity), or expect an unreasonable degree of detail and consistency with regard to asylum seekers’ experiences in their countries of origin. Alternately, assessors may conflate various forms of sexual identity (such as homosexuality and transgender status, or different forms of sexual expression from other cultures) under the blanket label of 'LGBT' or ‘LGBTQ’ (and assess risks accordingly). This paper assesses contemporary dilemmas in the assessment of asylum claims based upon sexual identity, including international legal challenges to previously-prevailing notions that lesbian, gay, bisexual, transgender and queer (“LGBTQ”) asylum seekers may escape persecution through ‘discretion’; difficulties faced in credibility assessment; and the need for greater receptivity to diversity of lived sexual identities across cultural barriers. It draws upon the author’s own experiences as researcher for an Australian law firm specialising in refugee law and advocacy.
An EU-US comparative legal analysis of transgender asylum adjudication
Queer Immigrant Justice Project at UnLocal, 2023
Based on the UNHCR – the UN Refugee Agency Guidelines and written by Mariza Avgeri, a lecturer, lawyer and advocate from Greece. The report compares the asylum systems of the European Union and the United States. Within the document, there is an analysis of the definition of refugees, membership in a particular social group, discrimination vs. persecution, as well as burden and the standard of proof requirements. The report discusses themes of sexual orientation, gender identity and expression, and transgender rights. There is also a comparison of asylum adjudications in EU tribunals with those in the US, such as the Executive Office for Immigration Review, the Board of Immigration Appeal, USCIS asylum offices and the US federal courts. This resource can be a tool for immigration advocates to understand more about the complex asylum systems in the US. As well as a resource for advocates in the EU to best assist transgender and gender nonconforming community members.
A BSTR ACT Although, in recent decades, the rights of lesbian, gay, bisexual, transgender, and intersex persons have been better protected, there remains significant room for improvement in the way claims for asylum based on sexual orientation, gender identity, and intersex status are assessed. Those claiming refugee status because they have a well-founded fear of persecution based on such issues continue to be asked inappropriate questions. The relatively new Difference, Stigma, Shame, and Harm (DSSH) model proposes that interviews to determine whether a person is a refugee should focus on eliciting asylum seekers' perceptions of the difference, stigma, shame, and harm they have experienced. This model is being used by a number of States, and has been endorsed by the United Nations High Commissioner for Refugees, but has yet to be the subject of rigorous scholarly analysis. This article seeks to fill this gap, and examines, in particular, whether it is an appropriate model for assessing the refugee claims of women seeking asylum based on persecution on account of their sexual orientation.
''We Do Not Matter'': Transgender Migrants/Refugees in the Dutch Asylum System
Although the Netherlands is renowned for its forerunner position in lesbian, gay, bisexual, transgender/transsexual, and intersex (LGBTI) rights, this study urges one to question whether it can still live up to that image. Reports, news items, and signals from non-governmental organizations, such as Transgender Network Netherlands in the field show that especially transgender migrants/refugees regularly face abuse and discrimination. Yet, academic research underlying such findings is scarce. Moreover, a highly gendered discourse on the current migration/refugee crisis makes transgender migrants/refugees even more invisible. This article presents an interpretive approach to the institutional and disciplinary realities they become part of. The approach comes from (1) a literature review, surveying both scholarly publications and other sources; (2) patchwork or instant ethnography, thickening the findings from the literature; (3) and foremostly a theoretical interpretation of the precarious situation in which many transgender migrants/refugees find themselves. We draw upon synthesizing concepts such as ''total institution'' (Goffman 1961; Henry 1963), ''human waste'' (Bauman 2004), and ''armed love'' (Ticktin 2011) to constitute our theoretical framework, through which we show that transgender migrants/refugees are met with compassion and pity, rather than equal rights and full citizenship. This bitter logic leads us to the conclusion that within the Dutch asylum system, transgender migrants/refugees are rendered politically irrelevant, which eventually reflects the main priority of the Dutch authorities (and society at large) to control the boundaries of the nation-state, rather than to address the needs and rights of those people who seek, on legitimate grounds, a passport to a better, that is, a full life.
2021
This paper aims to reflect on trans asylum and gender non-conforming applicants and the position they occupy in current refugee law and practice. In the first part, the paper will offer an overview of international refugee law with a special focus on the ‘particular social group’ grounds for discrimination, a taxonomy in which gender identity related reasons for application are usually included. The paper will proceed to examine the current literature on trans asylum seekers as belonging to a particular social group and to critique the criteria for such inclusion. I will problematize the way the assessment of persecution is attempted in gender diverse applicants’ claims and I will argue for the right to asylum on the grounds of both gender identity and expression. I will explore the need for a complementary narrative and practice based, rather than strictly identity-based approach to gender identity and expression related asylum claims based on the impact of gender non-conformity in...