Asylum Statutes Must Include Gender as a Basis for Seeking Asylum, Chicago Lawyer Says
Updated: Jul 29
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By Eric Harvey
COPYRIGHT PENDING 2021
Read this article in Spanish at Intermedia.Press.
Lea este artículo en español en Intermedia.Press.
A Chicago lawyer not authorized to speak with journalists, given a contractual agreement with a “Windy City”-based law firm, has recently drawn significant attention to substantial deficiencies within The Immigration and Nationality Act (“INA”) of 1952.
An outspoken advocate for major revisions to American immigration and asylum statutes, he has alleged systemic misogyny within United States asylum courts. Through intermediaries used to maintain his anonymity, he has pushed for expanding INA-recognized grounds for seeking asylum to include gender-related concerns. It was a pleasure to speak with him recently about his work.
The INA equates gender with “membership in a particular social group,” he emphasizes. Gender-based claims for asylum are categorized as such because they are said to contain an immutable truth about an entity. “Undeniably, however, women are more likely to claim this category when they are seeking asylum than are men,” he says.
Although the Civil Rights Act of 1964 recognized gender as a protected class, he draws attention to how America fails to acknowledge gender as an adequate claim for asylum. Instead, the asylum statute endorses ineffective patriarchal systems by rejecting women’s gender-based claims—claims made to escape or avoid “repressive social norms” that are often related to gender, he asserts. These cultural standards only deprive women of the right to liberty. As a result, America, “effectively sends the message that other countries’ repression of women is permissible, as long as that repression affects all women in those countries.”
Harm done by gender-based persecution disproportionately affects women, he argues. In the realm of stereotypes, developing countries are thought to be particularly malignant breeding grounds for violence against women; however, persecution against women occurs everywhere. According to United Nations Women, the delegation within the UN that handles gender equality issues, more than 70 percent of women across the world will endure some form of male-perpetrated violence, he claimed, referring to statistics available on UNWomen.org.
Violence against women forms part of the ethos in many countries, and because these anti-feminist cultural practices are intrinsically woven into the fabric of many societies, too many governments are reluctant to stand against and prevent these abuses. The United States is not an exception to this rule. The exclusion of gender as a legitimate basis for seeking asylum from the INA precludes the benefits that inclusion of this category would provide in protecting women, he says.
Being able to provide evidence of past persecution or providing a compelling argument regarding well-founded fear of persecution at some point in the future, on the basis of a woman’s gender identity alone, often creates problems, he says. It presents hurdles often insurmountable in the context of persecution under the category of “social group.” Recall that “social group” is the designation for gender under the statute.
For example, in Saideh Fisher v. I.N.S., the court rejected the argument that forcing women to maintain a “religiously-inspired dress code” was persecution. However, at the same time, it noted as a general rule that what is said to be prosecution is not persecution unless the party requesting asylum shows existence of “disproportionately severe punishment and pretextual prosecution,” the opinion in Saideh reads. Effectively speaking, this may lead to the conclusion that punishing all women for refusing to follow the normative standard of dress-code does not equal persecution but rather prosecution for a criminal offense. In many countries, failure to observe a “religiously-inspired dress code” is a criminal offense applicable to all members of a group recognized as subject to that “religiously-inspired dress code.” Women are of course the group most frequently subject to this restrictive expectation. So, when the court reached this conclusion, the asylum seeker that had refused to wear her burka was denied asylum.
Furthermore, the harms done to women on the basis of their gender-identity are often extremely difficult to prove, as he points out. This is because the persecution is so heavily embedded in societal normative structures. For example, when a woman requests asylum under circumstances where she has endured rape, domestic abuse, or sexual torture in her country of origin, documentary evidence is challenging to obtain. To clarify this for the laymen, documentary evidence is any kind of evidence that can be offered at trial, which is not orally based. It is comprised of documents, to put it simply.
That said, it is probably obvious to most readers as to why documentary evidence of rape is widely unavailable. Most people have probably heard about the backlog of rape kits that overwhelm many law enforcement jurisdictions in America, for example. In other words, even in America, where documentation may be available, so many pieces of documentation exist that these cumbersome bureaucracies mishandle that information, and they all too frequently simply misplace it.
Such a situation, regarding the backlog and mishandling of rape kits and other sex crime-related documentation, is not unique to the United States. It is prevalent in many other areas of the world. So, in cases where documentary evidence is challenging to obtain, the victim “often provides only her traumatic oral testimony, and traumatic testimony is often insufficient,” he observes. According to him, oral testimony does not rise to the legal standard for evidence that proves the occurrence of a sex crime. In the absence of such corroborative evidence, he says, such claims regarding sex crimes, are often simply thrown out.
To add insult to injury, victims are often reluctant to speak about experiences where they sustained abuse because they fear re-traumatization and they feel shame over that abuse. Fear of re-traumatization and the dissociative episodes many women experience during sexual assault often understandably distort a woman’s recollection of events. He asserts that this compromises many women’s perceived credibility. As a result, he contends that women often cannot secure asylum. According to him, this is particularly the case when a man is charged with taking a female abuse survivor’s testimony.
As of late, a great deal of male-perpetrated and traumatically unsympathetic procedures occurs during the taking of testimony in cases of sexually based violence, he notes. In other words, many women survive gender-based violence only to be re-traumatized by misogynistic approaches to the taking of testimony. Being blamed for their abuse reinforces a women’s trauma, he argues. For example, in the case of a rape, the persecution may re-occur (long after the initial experiences of persecution in any given woman’s country of origin) due to the problematically perceived notion that a woman has not protected her virginity or has relinquished her sexual purity-related qualifications for marriage, he says.
In consideration of the deficiencies in the statute, due to the exclusion of gender from it, it is urgent to add a sixth category, gender, to grounds for seeking asylum, he argues.
According to him, “Some may argue that the addition of a gender category, mainly benefitting women, creates a division between the sexes.” However, as he points out, legal scholar J Schenk notes that “gender is really a ‘hierarchy,’ and gender discrimination is best understood as a matter of domination and subordination." Thus, “gender is the result, not the cause of sex inequality,” Schenk has written.
To put it differently, the Chicago-based attorney’s proposal would add to protections for human rights, and not just women’s rights. It is irrelevant that the proposed amendment might disproportionately benefit women. “When a person is sexually assaulted, it is not just gender-violence. It is an assault on human rights.” He asserts.
According to him, revising the INA to include gender as a basis for seeking asylum represents not just a concern for women’s rights. “It is a humanitarian goal, and an urgent one at that,” he says.
What still needs to be said, however, is that his proposal deals in gender as a binary construction. It remains to be seen whether such gender-related reforms to the INA may ultimately take on greater proportions to encompass the rights of those identifying by other gender identities. Acknowledgement of those beyond the stereotypical masculine and feminine constructions of gender identity is as necessary to protections for human rights as this attorney’s proposal is.
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