The refugee definition in Article 1A(2) Refugee Convention does not explicitly refer to gender or sexuality. From the early 1980s, feminist and subsequent LGBTQI critiques have pointed out that this results in the practice of privileging straight men. This has resulted in a rethinking of the concept of refugee and asylum procedures at the international level, as well as on specific provisions of EU law.
Asylum law functions through a dichotomy between an idealized notion of Europe as a site characterized by human rights, and non-European countries as sites of oppression. In most social sciences and humanities literature, this dichotomy is seen as legitimizing European dominance and exclusion of non-Europeans. However, it is the same dichotomy which is used by asylum seekers to claim inclusion through the grant of asylum. Focusing on the inclusive potential of this exclusive dichotomy allows us to explore the ambiguities inherent in the dichotomy. In asylum claims based on persecution on account of gender and sexuality, it becomes evident that not all human rights are considered equally fundamental. In many cases, asylum seekers are required to renounce human rights in order to prevent persecution, for example by complying with patriarchal family norms. Even where this requirement is rejected, asylum law illustrates the ambiguous relation between Europe and human rights.
In de afgelopen jaren is de positie van LHBT vluchtelingen verbeterd, omdat een aantal kwestieuze praktijken om hun asielverzoeken af te wijzen is afgeschaft. Toch blijft er spanning bestaan tussen de restrictieve manier waarop mensenrechten worden geïnterpreteerd in de context van asiel, en de ruimere interpretatie daarbuiten. Zo beslissen ambtenaren over de gender- en seksuele identiteit van asielzoekers, en wordt strafbaarstelling van homoseksuele handelingen in het land van herkomst niet als vervolging in de zin van de vluchtelingendefinitie aangemerkt.
In this lecture, I take stock of what the gender and sexuality based critiques of refugee law formulated over the past decades have achieved. I first address statistical issues. Then I address the question how law is being applied today, now the gender and sexuality critiques of refugee law have been incorporated in legal practice. I focus on the case of A.A. and others v Sweden about forced marriage, and on discretion reasoning in sexual orientation cases. Having done that, I will try to understand this reformulated refugee law by using the concept of sexual nationalism.
[wr_row][wr_column]This article gives an overview of legal articles on LGBT asylum issues. It argues for a non-essentialist understanding of sexual identity when advocating asylum for persecuted LGBT people.
‘Sexual identity, normativity and asylum‘, in Thomas Spijkerboer (Ed.), Fleeing Homophobia. Sexual orientation, gender identity and asylum, London & New York: Routledge 2013, p. 217-238[/wr_column]][wr_text]This article gives an overview of legal articles on LGBT asylum issues. It argues for a non-essentialist understanding of sexual identity when advocating asylum for persecuted LGBT people.
‘Sexual identity, normativity and asylum‘, in Thomas Spijkerboer (Ed.), Fleeing Homophobia. Sexual orientation, gender identity and asylum, London & New York: Routledge 2013, p. 217-238[/wr_text][/wr_column][/wr_row]
This book is my PhD, a combined legal and sociological project on women and refugee status. It consists of (a) a statistical analysis (b) a content analysis of 252 asylum files of single women who applied for asylum in the Netherlands in 1994 (c) an analysis of all case law I could find in Dutch, English, French and German (d) an analysis of the debate among academics, NGO’s and policy makers.
The book was published by Ashgate in 2000. The version released here is the PhD version, printed in 1999. The PhD version is identical, but (a) contains more typos than the Ashgate version and (b) at some points the page numbering differs. I suggest that you refer to this version as Spijkerboer 1999/2000.