Gender and the Membership in a Particular Social Group Category of the 1951 Refugee Convention


GENDER AND THE "MEMBERSHIP IN A
PARTICULAR SOCIAL GROUP" CATEGORY OF
THE 1951 REFUGEE CONVENTION

ANDREA BINDER*

I. INTRODUCTION

The criteria of "membership in a particular social group," as laid
down in the U.N. Convention Relating to the Status of Refugees', and
codified in the Refugee Act of 1980,2 is an element of the universally
recognized refugee definition which has become a critical point for many
women seeking asylum in the United States and elsewhere. A person
seeking refugee recognition not only has to demonstrate that she has been
persecuted or has a "well-founded" fear of persecution; in addition, she
must show that the persecution directed against her is caused by a
discriminatory motive as stated in the refugee definition. Such grounds for
persecution are limited to race, religion, nationality, political opinion, or
membership in a particular social group.

Women are persecuted for the same reasons as men; for example,
they are arrested and tortured due to their publicly demonstrated political
opinions. However, women frequently face gender-based persecution,
which may have two different meanings: "The concept of women being
persecuted as women is not the same as women being persecuted because
they are women." 3 The first concept, that of women persecuted as women,
relates to the types and forms of persecution that are gender-specific, such
as rape, female genital mutilation (FGM), or domestic abuse.4 The second

lic. iur. University of Basel, Switzerland, 1996; LL.M. Columbia Law School,
2000.

Winner, Columbia Law Women's Association/Journal of Gender and Law Myra
Bradwell Writing Competition, 2000.

1 United Nations Convention Relating to the Status of Refugees, July 28, 1951, 19
U.S.T. 6260, T.I.A.S. No. 6577, 189 U.N.T.S. 137; United Nations Protocol Relating to the
Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, T.I.A. No. 6577, 606 U.N.T.S. 267
[hereinafter Refugee Convention].

2 8 U.S.C. § 1101(a) (42) (A) (1994).

3 Refugee Women's Legal Group, Gender Guidelines for the Determination of
Asylum Claims in the UK § 1.11 (1998).

4 See infra II.B. 1.



Columbia Journal of Gender and Law

concept, that of women persecuted because they are women, addresses the
causal relationship between gender and persecution. The term gender-
related persecution refers to the latter and focuses on the bases of
persecution. Gender alone, or combined with other characteristics, can be
the basis for the persecution. This two-pronged definition of gender-based
persecution illustrates that gender-specific harm is not necessarily
persecution perpetrated because of the victim's gender. As the case of
female genital mutilation shows, a woman (or girl) may be persecuted both
as and because she is a woman (or girl).5

Gender-related persecution, persecution because of gender, is often
discussed in the context of the "membership in a particular group" category.
The definition of refugee is deficient in addressing the concerns of
persecuted women. I will begin with a brief overview of the Refugee
Convention and the purpose of the social group category that will conclude
with an examination of the international developments and the pertinent
U.S. practice. This will facilitate a discussion of the differences in the
application of the indefinite category of "particular social group" by a
comparative case study in relation to one type of gender-based persecution.
Courts should recognize gender-based definitions of "social group." I
should emphasize that I can give only a short, rather incomplete
examination of one aspect of the problems and obstacles that women
fleeing gender-based persecution often confront due to the lack of a gender-
sensitive refugee definition and the rather incoherent legal concept of
"particular social group."6

5 Refugee Women's Legal Group, supra note 3, §§ 1.12-.15. As to the meanings
of the terms gender-based or gender-related persecution, see Nancy Kelly, Gender-Related
Persecution: Assessing the Asylum Claims of Women, 26 Cornell Int'l L.J. 625, 642 (1993);
Anjana Bahl, Home is Where the Brute Lives: Asylum Law and Gender-Based Claims of
Persecution, 4 Cardozo Women's L.J. 33, 35-36 (1997).

6 Other critical aspects include, for example, the denial of asylum because the harm

women fear is not viewed as "persecution" by asylum adjudicators. In addition, women are
confronted with refugee determination procedures that fail to take account of women's
particular experiences and cultural backgrounds. And, of course, due to economic, social
and cultural circumstances, most women do not even have the possibility to seek refuge in a
safe country where they would have a chance to be granted asylum.

168 [Vol. 10:2



2001 ] Gender and "Membership in a Particular Social Group" 169

II. GENDER-BASED PERSECUTION AND THE CONCEPT OF
"MEMBERSHIP IN A PARTICULAR SOCIAL GROUP":

CURRENT PRACTICE AND DEFICIENCIES

A. The Refugee Definition of the Refugee Convention and its "Gender-
Deficiency"

Article I(A)(2) of the Refugee Convention read together with the
1967 Protocol Relating to the Status of Refugees defines "refugee" as a
person who

owing to a well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social
group or political opinion, is outside the country of [her]
nationality and is unable, or owing to such fear, is unwilling to
avail [herself] of the protection of that country; or who, not
having a nationality and being outside the country of [her]
former habitual residence as a result of such events, is unable or,
owing to such fear, is unwilling to return to it.7

This refugee definition was drafted against the background of the atrocities
committed by Nazi-Germany. The drafters' main concern was to address
the mass persecutions suffered by the European Jews and other targeted
persons based on racial, religious, and political grounds.8 The definition is
also a product of the Cold War,9 which prompted ideologically-based
concerns by the West about the international protection of political
dissidents from Eastern European communist regimes.10 In its preamble,
the Refugee Convention refers to the principle that "human beings shall

7 The refugee definition of the 1980 Refugee Act parallels that of the Refugee
Convention. Congress' intent was to comply with the United Nations' definition. See
Arthur C. Helton, Persecution on Account of Membership in a Social Group as a Basis for
Refugee Status, 15 Colum. Hum. Rts. L. Rev. 39, 40 & nn.7-8 (1983).

, See, e.g., Jack Garvey, Toward a Reformulation of International Refugee Law 26
Harv. Int'l L.J. 483 (1985) (stressing that the Refugee Convention and its Protocol "center on
a definition of 'refugee' that was designed to secure the humanitarian objective of relieving
the victims of the Nazi persecutions"); Joan Fitzpatrick, Revitalizing the 1951 Refugee
Convention, 9 Harv. Hum. Rts. J. 229, 239-40 (1996) (stating that "[t]he paradigm inspiring
the Refugee Convention was the right-wing totalitarian regime of Nazi Germany.").

9 Jane Connors, Legal Aspects of Women as a Particular Social Group, Int'l J.

Refugee L., Special Issue on Gender-Based Persecution, Autumn 1997, at 118.

1o See, e.g., James C. Hathaway, A Reconsideration of the Underlying Premise of

Refugee Law 31 Harv. Int'l L.J. 129, 148-49 (1990).



170 Columbia Journal of Gender and Law [Vol. 10:2

enjoy fundamental rights and freedoms without discrimination."" This
definition reflects the human rights philosophy of the time period with its
"gender deficiency" in several aspects: the persecution grounds emphasize
the protection of civil and political rights, while failing to directly address
the violation of social and economic rights.' 2 By focusing on direct rights
violations by the state, traditional definitions fail to recognize the abuse of
women as a human rights problem and reproduce the public/private sphere
distinction of human rights law.' 3  This approach tends to characterize
women's experience of abuse as a private matter of the home and
community, leaving the responsibility of addressing it to individual
governments. In terms of refugee law, this means that "the key criteria for
being a refugee are drawn primarily from the realm of public sphere
activities dominated by men. 14 These activities can include belonging to
political parties, making speeches, or attending demonstrations. Women's
experiences of harm, however, are often centered in the private realm 15 and
therefore do not easily fit within this framework of refugee protection.
Thus, harmful acts against women are often viewed as private in nature and
not politically motivated. 16 The lack of gender-sensitivity with regard to
women's refugee claims is further evidenced by the fact that the persecution
grounds of the Refugee Convention do not include sex or gender. In

11 As to the significance of the preamble, see Regina v. Imm. App. Tribunal, Ex
Parte Shah, 2 A.C. 629 (H.L. 1999), infra Part I1I.B.

12 Kelly, supra note 5, at 627.

13 Hilary Charlesworth, What Are "Women's International Human Rights?" in
Human Rights of Women: National and International Perspectives 58, 71 (Rebecca J. Cook
ed., 1994).

14 Doreen Indra, Gender: A Key Dimension of the Refugee Experience, 6 Refuge 3

(1987), quoted in Jacqueline Greatbatch, The Gender Difference: Feminist Critiques of
Refugee Discourse, 1 Int'l J. Refugee L. 518, 519 (1989). Cf Pamela Goldberg, Where in
the World Is There Safety for Me?: Women Fleeing Gender-Based Persecution, in Women's
Rights Human Rights 345, 347 (J. Peters et al. eds., 1994). According to the author, the
main difficulty for women "lies not in the legal definition but rather in how that definition is
interpreted and applied. As with the common understanding of what constitutes human
rights violations, the traditional view of what constitutes persecution reflects a male
consideration of 'normal' or acceptable conduct." Id.

15 However, as Greatbach, supra note 14, at 520, stresses, the distinction between

the private and public realm should not be overemphasized since it may disregard the
oppression experienced by women in the public sphere and the interconnectedness of public
and private spheres.

16 See Deborah E. Anker et. al., Women Whose Governments Are Unable or

Unwilling to Provide Reasonable Protection from Domestic Violence May Qualify as
Refugees Under United States Asylum Law II Geo. Immigr. L.J. 709, 711 (1997).



2001] Gender and "Membership in a Particular Social Group" 171

contrast, the U.N. Charter and the Universal Declaration of Human Rights
both prohibit discrimination based on sex. 7

For these reasons, the facial gender-neutrality of the refugee
definition is in fact a gender-deficiency that reflects the perspective of that
time that women and men lead identical lives and that the human condition
is unaffected by gender.'8 The category of membership in a particular
social group, however, which was introduced at the Conference of
Plenipotentiaries as an amendment by the Swedish representative,' 9 has
been widely recognized as an open-ended "catch-all" category2 that allows
the inclusion of persecution claims not covered by racial, religious, or
ethnic groups.'

Therefore, one must not interpret the omission of a sex or gender
category in the definition of the Refugee Convention as precluding women
who fear gender-based persecution from receiving refugee protection. 22 In
fact, the contrary must be true, as the Refugee Convention is aimed at
indiscriminately protecting those fearing persecution. As the Supreme
Court of Canada emphasized in Canada (Attorney General) v. Ward: "[T]he
meaning assigned to 'particular social group' . . should take into account
the general underlying themes of the defence of human rights and anti-
discrimination that form the basis for the international refugee protection
initiative.'

23

1" U.N. Charter, art. 1, para. 3 & art. 55(c); Article 2, G.A. Res. 217A, U.N.

GAOR, 3rd Sess., at 71, U.N. Doc. A/810 (1948).

1S Noreen Burrows, International Law and Human Rights: The Case of Women's

Rights in Human Rights: From Rhetoric to Reality 80, 82 (Tom Campbell et al. eds., 1986).

19 Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons,

U.N. GAOR, Summary Rec. of the 3rd mtg,. at 14, U.N. Doc. A/CONF.2/SR.3 (1951). The
Swedish representative explained only that "experience had shown that certain refugees had
been persecuted because they belonged to particular social groups." Id. See also Maryellen
Fullerton, A Comparative Look at Refugee Status Based on Persecution Due to Membership
in a Particular Social Group, 26 Cornell Int'l L.J. 505, 509 (1993).

20 Helton, supra note 7, at 41-42.

21 See, e.g., [I Refugee Charter] Atle Grahl-Madsen, The Status of Refugees in

International Law §89(iv) (1966); Guy S. Goodwin-Gill, The Refugee in International Law
46 (2d ed. 1996); David L. Neal, Women as a Social Group: Recognizing Sex-Based
Persecution as Grounds for Asylum, 20 Colum. Hum. Rts. L. Rev. 203, 227-28 (1988).

22 See Bahl, supra note 5, at 37; Goldberg, supra note 14, at 347.

23 Canada (Attorney General) v. Ward, [1993] 103 D.L.R. (4th) 1, 33. To the

Court's inclusion of gender in the social group ground, see infra note 44.



172 Columbia Journal of Gender and Law [Vol. 10:2

B. Case Law and Practice with Regard to Gender-Based
Persecution

1. Types of Gender-Specific Persecution

To illustrate what violations fall under the term "gender-specific
persecution," I briefly want to refer to the most common types of gendered
harms which can constitute persecution 24 (provided that the other conditions
of the refugee definition are met). Perhaps the most pervasive forms of
gender persecution are rape and other forms of sexual violence. Although
men also are subjected to rape,25 victims of rape are predominately women
and girls. A pervasive pattern of sexual violence against women exists in
all cultures and societies throughout the world. International communities
should recognize cases of rape and other sexual violence as human rights
violations and a basis for refugee status.26 These cases should include those

24 There exists no conventional or statutory definition of persecution. The U.S.

judiciary has developed a number of descriptions of persecution. According to the Board of
Immigration Appeals (BIA) persecution is the "infliction of harm or suffering by a
government, or persons a government is unwilling or unable to control, to overcome a
characteristic of the victim." See In re Kasinga, Interim Decision 3278 (BIA 1996). The
Canadian Supreme Court in Ward approved a definition of persecution as "sustained or
systemic violation of basic human rights demonstrative of a failure of state protection."
Canada (Attorney General) v. Ward, [1993] 103 D.L.R. (4th) 1, 33 (citing James C.
Hathaway, The Law of Refugee Status 103-05 (1991)). This approach has been integrated
into the Canadian Gender Guidelines, Immigration and Refugee Board, Guidelines Issued by
the Chairperson Pursuant to Section 65(3) of the Immigration Act: Women Refugee
Claimants Fearing Gender-Related Persecution (Ottawa, Canada: Immigration and Refugee
Board, March 9, 1993, reissued November 13, 1996) [hereinafter Gender Guidelines].
Today the definition of persecution as a serious human rights violation is widely recognized.
See, e.g., Handbook on Procedures and Criteria for Determining Refugee Status, UNHCR,
U.N. Sales No. HCR/IP/4/Eng/REV.1 § 51 (reedited 1992) (stating that besides threat of life
or freedom, other serious violations of human rights would also constitute persecution)
[hereinafter UNHCR Handbook]. See also, e.g., Anker et al., supra note 16, at 725. As
gender-based violence has found increasing recognition as a serious violation of women's
human rights, the description of persecution in terms of human rights opens the door (at least
a bit) for women fearing gender violence to be granted refugee status.

25 Reports about the Russian war in Chechnya have revealed that men are not

spared from rape and other sexual violence. See Michael Wines, Chechens Tell of Torture in
Russian Camp, N.Y. Times, Feb. 18, 2000. Rhonda Copelon points out that "[a]lthough
women are overwhelmingly the victims.., gender-based violence can be inflicted upon men
as well as in the rape of male prisoners to humiliate them through 'feminization,' or violence
against men because they are or appear to be gay or feminine." Rhonda Copelon, Intimate
Terror: Understanding Domestic Violence as Torture in Human Rights of Women 116, 145
n.I (Rebecca Cook ed., 1994),

26 The UNHCR Guidelines on the Protection of Refugee Women state in detail:



2001 ] Gender and "Membership in a Particular Social Group" 173

instances where the act occurs in the context of domestic violence,27 where
the consent of a public official is involved, or where systematic violations
take place in times of armed conflict. 28

While rape and sexual violence are the most commonly recognized
forms of gender-specific persecution, other kinds of persecution are gender-
specific. These forms include cultural and religious traditions inhibiting
women's right to life, liberty and security, such as female genital mutilation
(FGM),29 honor killings,30 dowry deaths31 and other traditional practices

Persecution of women often takes the form of sexual assault. The
methods of torture can consist of rape; the use of electric currents upon
the sexual organs; mechanical stimulation of the erogenous zones;
manual stimulation of the erogenous zones; the insertion of objects into
the body-openings (with objects made of metal or other materials to
which an electrical current is later connected); the forced witnessing of
"unnatural" sexual relations; forced masturbation or to be masturbated
by others; fellatio and oral coitus; and finally, a general atmosphere of
sexual aggression and threats of the loss of the ability to reproduce and
enjoyment of sexual relations in the future.

UNHCR Guidelines on the Protection of Refugee Women, UNHCR Subcomm. of the Whole
on Int'l Protection, 42nd Sess., 59, U.N. Doc. EC/SCP/67 (1991) [hereinafter UNHCR
Guidelines].

27 See infra Part B; Anker et al., supra note 16, at 744 ("Domestic violence is not a

random crime; it is a gender-specific violation of the rights of women. It often implicates the
most fundamental of human rights: the right to life, and to freedom from torture and cruel,
inhuman and degrading treatment.").

28 See Krishna R. Patel, Recognizing the Rape of Bosnian Women as Gender-

Based Persecution, 60 Brook. L. Rev. 929 (arguing that Bosnian women constitute a
particular social group).

29 See In re Kasinga, Interim Decision 3278 (BIA 1996). In this case which has

drawn worldwide attention, the Board granted asylum because of FGM for the first time.
After reviewing the extensive material that described the forms of FGM and the serious
effects for a woman or a girl who has to undergo this practice, the Board found that FGM
amounts to the level of persecution. It concluded that Kasinga, a young woman from Togo,
was persecuted on account of her membership in the particular social group of "young
women of the Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe,
and who oppose the practice." Id. at 3. See Amy Stem, Female Genital Mutilation: United
States Asylum Laws are in Need of Reform, 6 Am. U. J. Gender & L. 89, 100 (1997)
(pointing to Kasing as a "groundbreaking" case); Linda A. Malone, Beyond Bosnia and In
Re Kasinga: A Feminist Perspective on Recent Developments in Protecting Women from
Sexual Violence 14 B.U. Int'l L.J. 319, 331 (1996) (commenting that Kasing can be
viewed as "a perfunctory, narrowly confined majority decision ... which seems deliberately
minimalist to de-emphasize its significance"); see also Kris Ann Balser Moussette, Female
Genital Mutilation and Refugee Status in the United States-A Step in the Right Direction,
19 B.C. Int'l & Comp. L. Rev. 353 (1996) (arguing that FGM is a form of gender-related
persecution that gives a woman a valid claim for refugee status in the U.S. based on her
membership in a particular social group).



Columbia Journal of Gender and Law [Vol. 10:2

harmful to women's and girls' health.32 In the same manner, human rights
violators often subject women to inhumane and discriminatory treatment for
transgressing customary and religious laws (such as dress codes,
employment and education restrictions or restrictions on women's freedom
of movement). The refugee definition should identify these women, too, as
refugees.33 Other forms of persecution specifically directed against women
include forced abortion, compulsory sterilization, 3 and forced pregnancy.35

30 Perhaps as many as 5,000 women and girls a year are killed for violating their

"family honor," many of them for the dishonor of having been raped. "Honor killings" take
many forms. Women and girls are murdered mostly by male members of their own families.
In other cases, young girls and women have been forced to commit suicide and others are
disfigured by acid bums. Such killings have been reported, inter alia, in Bangladesh, Brazil,
Egypt, India, Israel, Italy, Jordan, Pakistan, Turkey, Uganda, and the United Kingdom. Most
of the perpetrators go unpunished or receive reduced sentences based on the justification of
having murdered to defend their misconceived notions of "family honor." See Report of the
Special Rapporteur, Civil and Political Rights, Including Questions of: Disappearances and
Summary Executions, U.N. ESCOR, U.N. Doc. E/CN.4/2000/3, §§ 78-84 (2000); U.N.
Population Fund, The State of World Population 2000, Lives Together, Worlds Apart - Men
and Women in a Time of Change (Sept. 20, 2000), available at
http://www.unfpa.org/swp/swpmain.html, ch. 3, at 6.

31 It is reported that between 1988 and 1993 more than 20,000 wives in India were
murdered or committed suicide because they could not meet demands for increased dowries.
The State of Women in the World Atlas 27 (Joni Seager, 2d ed. 1997).

32 See generally The Implementation of the Human Rights of Women, Traditional

Practices Affecting the Health of Women and the Girl Child: Third Report of the Special
Rapporteur on the Situation Regarding the Elimination of Traditional Practices Affecting the
Health of Women and the Girl, U.N. ESCOR, Comm. on Hum. Rts., U.N. Doc.
E/CN.4/Sub.2/1999/14 (1999).

33 See UNHCR Refugee Women and International Protection Executive Comm.,

36 th Sess., Conclusion No. 39(k), U.N. Doc. A/40/12 (1985); infra B.2.

34 See Cheung v. Canada (M.E.I.) [1993] 102 D.L.R. (4th) 214. The Federal Court
of Canada held that

[tlhe forced sterilization of women is a fundamental violation of basic
human rights. It violates Articles 3 and 5 of the United Nations
Declaration of Human Rights.. .. The forced sterilization of a woman is
a serious and totally unacceptable violation of her security of the person.
Forced sterilization subjects a woman to cruel, inhuman and degrading
treatment.

Id. at 221. It concluded that Cheung belongs to a particular social group of Chinese women
who had more than one child and faced forced sterilization. Id.

35 Forced pregnancy was part of the pervasive pattern of gender crimes in the
Bosnian war. A Commission of Experts reported:



2001] Gender and "Membership in a Particular Social Group" 175

All these forms of harm are not only primarily or exclusively
directed at females, but may also be inflicted upon women and girls because
of their gender.36 In these cases, gender may act as either the persecutor's
single motivation or it can be one factor among others, such as marital
status, age, sexual orientation, ethnic or tribal affiliation, or economic class.
In such a gender-related case, a woman's claim does not fit in the other four
enumerated grounds. Because no separate ground for asylum based on
gender exists, it is imperative that persecuted women gain protection under
the social group category. Therefore, asylum adjudicators and judges
should bear in mind the underlying purpose of the Refugee Convention in
general and of the social group clause in particular when considering these
kinds of claims.

2. UNHCR and State Practice

Currently, both international and national communities recognize
the special problems of women fleeing gender-related persecution and
seeking protection under the Refugee Convention.

a. The International Level

International organizations have been ambivalent in acknowledging
the special problems of women. In 1985, in its Conclusion No. 39, the

Some captors also state that they are trying to impregnate the women.
Pregnant women are detained until it is too late for them to obtain an
abortion. One woman was detained by her neighbour (who was a
soldier) near her village for six months. She was raped almost daily by
three or four soldiers. She was told that she would give birth to a chetnik
boy who would kill Muslims when he grew up.

Final Report of the Commission of Experts Pursuant to Security Council Resolution 780
(1992) of 6 October 1992, at § 248, U.N. Doc. S/1994/674 (1994).

36 This paper is confined to gender-based persecution in the context of the "social
group" category. Of course, women are also subjected to persecution on account of the other
grounds encompassed in the refugee definition, even where serious harm takes a gender-
specific form. As it has been commented, it is important that women's claims are not
examined solely in terms of the "social group" ground if the aim is truly to give recognition
to the nature of their experiences. Thus, it is asserted that most claims involving fear of
persecution for transgressing religious or social norms can be determined on grounds of
religion or political opinion and that the woman's resistance against gender oppression
should be regarded as political activity. European Council on Refugees and Exiles, Position
on Asylum Seeking and Refugee Women §§ 14-25 (Dec. 1997), available at
http://www.ecre.org/archive/women.html. See also Report of the Expert Group Meeting on
Gender-Based Persecution, organized by the Division for the Advancement of Women and
the Centre for Refugee Studies at York University, Canada, held in Toronto from Nov. 9-12,
1997, EGM/GBP/1997/Report.



176 Columbia Journal of Gender and Law [Vol. 10:2

UNHCR Executive Committee recognized that States "are free to adopt the
interpretation that women asylum-seekers who face harsh or inhuman
treatment due to their having transgressed the social mores of the society in
which they live may be considered as a 'particular social group."', 37 Since
that time, the UNHCR has periodically addressed the special protection
needs of women refugees.38 In 1991, the office of the UNHCR issued
guidelines on the protection of refugee women in which it reiterated the
principle that "women fearing persecution or severe discrimination on the
basis of their gender should be considered members of a social group., 39 In
1995, it encouraged States to develop and implement guidelines concerning

40persecution specifically aimed at women. More recently, the U.N.
Division for the Advancement of Women recommended that when a
woman's sex or gender constitutes a significant reason for persecution, the
international community should recognize her fear as being on account of
her membership in a particular social group, namely women.4' In contrast
to these recommendations, the UNHCR Handbook, the main UNHCR
document providing guidelines and criteria for the determination of refugee
status,42 deals only generally with the social group category and does not
mention gender as a social group.43

37 See supra note 33. A year earlier the European Parliament issued an identical
resolution. See European Parliament, Resolution on the Application of the Geneva
Convention Relating to the Status of Refugees, 1984 O.J. (C 127) 137.

38 See, e.g., UNHCR Executive Comm. on Refugee Protection and Sexual

Violence, 44th Sess., Conclusion No. 73, U.N. Doc. A/AC. 96/821 (1993) (supporting,
among other things, the recognition as refugees of persons whose claim to refugee status is
based upon a well-founded fear of persecution through sexual violence, for one of the
reasons enumerated in the refugee definition including membership in a particular social
group).

39 UNHCR Guidelines, supra note 26, at 71.

40 General Conclusion on International Protection, UNHCR Exec. Comm., 46th

Sess., Conclusion No. 77 (XLVI) (1995) (emphasizing that in accordance with the principle
that women's rights are human rights these guidelines should recognize as refugees women
who claim persecution through sexual violence and other gender-based persecution).

41 Report of the Expert Group Meeting on Gender-Based Persecution supra note

36.

42 In Ramos-Vasquez v. INS, the Ninth Circuit stated:

While the United Nations Handbook is not binding on the INS
[Immigration and Naturalization Service], the Supreme Court has
observed that it "provides significant guidance" in construing the United
Nations Protocol Relating to the Status of Refugees . . . to which the
United States acceded in 1968, and which Congress sought to follow in
enacting United States refugee law.



2001 ] Gender and "Membership in a Particular Social Group" 177

These conclusions and recommendations (in the same manner as
the UNHCR Handbook) are not legally binding instruments, however, and
States remain free to decide whether they want to employ them as
interpretation guidelines. A number of States have chosen to do so and
have developed refugee determination guidelines concerning women
refugees fearing gender-based persecution.

b. The National Level

In 1993, Canada became the first State Party to the Refugee
Convention to adopt comprehensive "Gender Guidelines" formally
recognizing that the social group category could be applied to women
fleeing persecution on gender grounds.4 Following the UNHCR and the
Canadian model, the Immigration and Naturalization Service (INS) issued
Considerations For Asylum Officers Adjudicating Asylum Claims From
Women in May 1995.4

' The INS Guidelines sought to enhance the gender-
sensitivity of U.S. asylum officers dealing with substantive and procedural
aspects of gender-related claims. Moreover, the guidelines represented an
explicit recognition that gender-based persecution is a potential ground for
asylum. Despite the lack of a uniform practice in the circuit courts, 46 the

57 F.3d 857, 863 (9th Cir. 1995).

43 UNHCR Handbook, supra note 24. According to the UNHCR Handbook:

[A] "particular social group" normally comprises persons of similar
backgrounds, habits or social status. . . . Membership of such a
particular social group may be at the root of persecution because there is
no confidence in the group's loyalty to the Government or because the
political outlook, antecedents or economic activity of its members, or the
very existence of the social group as such, is held to be an obstacle to the
Government's policies.

Id. §§ 77-78.

44 Gender Guidelines supra note 24. In this respect, the Guidelines are mainly
based upon the Canadian Supreme Court decision in Ward, in which the Court indicated
three possible categories of "particular social groups." According to the Court the first one
is defined "by an innate or unchangeable characteristic" that "would embrace individuals
fearing persecution on such bases as gender, linguistic background and sexual orientation."
Canada (Attorney General) v. Ward, [1993] 103 D.L.R. (4th) at 34.

45 Immigration and Naturalization Service (INS), Considerations for Asylum
Officers Adjudicating Asylum Claims from Women (May 16, 1995), reprinted in Deborah E.
Anker, Women Refugees: Forgotten No Longer? 12 San Diego L. Rev. 771, 794 [hereinafter
INS Guidelines].

46 See infra lI.B.3.



178 Columbia Journal of Gender and Law [Vol. 10:2

INS Guidelines reaffirm that gender, either alone or together with other
characteristics, can define a particular social group.47 In recent years, other
countries have developed gender guidelines48 and an increasing number of
national courts have acknowledged that gender-based asylum claims can
constitute persecution based on membership in a particular social group
under the Refugee Convention.49

In light of these national and international developments, one can
conclude that persecution specifically directed at women, because of their
gender, is covered by the (universal) Refugee Convention definition of
refugee. However, due to the vagueness of the social group category, the
asylum claims of women citing gender-based persecution depend largely on
case-by-case adjudication conducted by individual decision-makers. An
analysis of U.S. practice reveals that women risk presenting their case

47 INS Guidelines, supra note 45, at 12-13. See also Deborah Anker, Rape in the
Community as a Basis for Asylum: The Treatment of Women Refugees' Claims to
Protection in Canada and the United States (Part II), 2 Bender's Immigr. Bull. 608, 613
(1997). But see Caryn L. Weisblat, Comment, Gender-Based Persecution: Does United
States Law Provide Women Refugees with a Fair Chance? Tul. J. Int'l & Comp. L. 407
(1999) (expressing the opinion that the INS Guidelines in recounting the divergent court
holdings will offer little support to women confronted by the adjustable definition of the
"particular social group" but rather "lead to further confusion for those who try to follow this
stream of random cases").

48 See Australia, Department of Immigration and Multicultural Affairs, Refugee
and Humanitarian Visa Applicants, Guidelines on Gender Issues for Decision Makers (July
1996), reprinted in 9 I.J. Refugee L. 195 (Special Issue on Gender-Based Persecution,
Autumn 1997). Some commentators see in the Australian Guidelines "the most thorough
and far reaching of the existing guidelines." Bahl, supra note 5, at 41 n.48 (citing Heaven
Crawley, Women as Asylum Seekers: A Legal Handbook 14-15 (1997)).

49 See, e.g., Cheung v. Canada (M.E.I.), [1993] 102 D.L.R. (4th) 214 (the Federal
Court of Canada concluding that Cheung belongs to a particular social group of Chinese
women who had more than one child and faced forced sterilization); VG Frankfurt a.M.
[German Administrative Court Frankfurt am Main], Oct. 23, 1996, 5 E 33532/94, excerpts
reprinted in 3 Streit 130 (1997) (concluding that the claimant belonged to the social group of
single women living in Afghanistan without male protection who have to appear in public in
order to earn their living and are thus threatened with the accusation of violating the strict
Islamic social mores); Refugee Status Appeals Authority, New Zealand, Refugee Appeal No.
203,9/93 Re MN, Apr. 5, 1995, cited in 9 I.J. Refugee L. 111, 156 (Special Issue on Gender-
Based Persecution Autumn 1997) (accepting as social group "women who, as a result of
their deeply held values, beliefs, and convictions, reject or oppose the way in which they are
treated in Iran, and the attendant power structure which perpetuates and reinforces the so
called 'Islamist' justification for this state of affairs"); see also the discussion of Kasinga,
supra note 29. See generally Special Rapporteur on Violence Against Women, its Causes
and Consequences, Report on Violence Against Women in Armed Conflict, Custodial
Violence Against Women and Violence Against Refugee and Internally Displaced Women,
ch. III.B.2, U.N. Doc. E/CN.4/1998/54 (1998) (referring to recent national developments
with regard to gender-based persecution). See infra II.B.3. & Il.



2001 ] Gender and "Membership in a Particular Social Group" 179

before a court that defines "social group" narrowly and rejects the validity
of gender-based asylum claims made under the Refugee Convention and the
1980 Refugee Act.

3. U.S. Administrative and Judicial Practice Concerning the "Particular
Social Group" Category

As mentioned above, courts at the U.S. appellate level have dealt
with the meaning of the phrase "membership in a particular social group"
inconsistently and have struggled to define the concept.50 There are two
divergent approaches in the circuits: 1) a restrictive tendency to refuse to
allow gender to define social group; and 2) a more liberal inclination to
allow for a broader definition of social group. The Board of Immigration
Appeals (BIA or the "Board") took the latter approach in its decision in In
re Acosta.5' There, the BIA examined the protection afforded by the other
four grounds enumerated in the refugee definition and articulated two
alternative criteria for the social group category. It held that "the common
characteristic that defines the group.. . must be one that the members of the
group either cannot change, or should not be required to change because it
is fundamental to their individual identities or consciences. 52 In addition,
the BIA named sex as an "immutable characteristic," which was a critical
step for women fearing gender-based persecution. 53

Some courts followed the BIA's reasoning 54 while others concluded
either that gender alone cannot define a "particular social group '55 and/or

5
0 See Fatin v. INS, 12 F.3d 1233, 1238 & nn.4-5 (3d Cir. 1993) (citing courts and

commentators).

51 In Re Acosta, 19 1 & N Dec. 211 (BIA 1985).

52 See id.

53 Id. at 233. Other examples mentioned by the Board are color or kinship ties.
Following Acosta the Third Circuit in Fatin identified three elements that a claimant has to
establish: "[She] must (1) identify a group that constitutes a 'particular social group' within
the interpretation [of Acosta], (2) establish that ... she is a member of that group, and (3)
show that . . . she would be persecuted or has a well-founded fear based on that
membership." 12 F.3d at 1240.

4 Fatpi 12 F.3d at 1240. In Fatin, the Third Circuit held that women in Iran could
define a "particular social group" but found that the applicant did not face persecution
simply because she was a woman. According to the court, only the subgroup of Iranian
women whose opposition to Iran's gender-specific laws is so profound that they would
disobey were at risk of persecution because of the possibility of extreme consequences of
disobedience. However, the court found that Fatin was not in this particular social group.
Id. at 1241.



180 Columbia Journal of Gender and Law [Vol. 10:2

constructed the phrase in a restrictive way that makes it almost impossible
to define a social group solely by gender. In Sanchez-Truiillo v. INS, 56 the
Ninth Circuit reasoned that the phrase "particular social group" implies a
collection of people closely affiliated with each other, who are actuated by
some common impulse or interest.57 Despite these contradictory court
rulings, the INS Guidelines rely largely on Acosta and on the UNHCR
Handbook,58 which has been viewed as stating an even more liberal
standard 59 than that articulated by the BIA in Acosta.

As demonstrated by these examples from the U.S. federal court
system, there are disparities in the interpretation of the Refugee Convention
and gender-based persecution even within one country. These differences
are exacerbated at the interstate level. In an attempt to illustrate the
inconsistency of state practice I wish to engage in a comparative case study.
I have chosen Canadian, British, and American refugee cases concerning
women who fled domestic violence and made persecution claims based on
gender and other factors. Although the fact patterns are different, the

55 See, e.g., Gomez v. INS, 947 F.2d 660, 663-64 (2d Cir. 1991). The court
rejected a "social group" claim that was characterized as "women who have been previously
battered and raped by Salvadoran guerrillas." It further stated that "[p]ossession of broadly-
based characteristics such as youth and gender will not by itself endow individuals with
membership in a particular group." Id. According to Gomez, a particular social group "is
comprised of individuals who possess some fundamental characteristic in common which
serves to distinguish them in the eyes of a persecutor-or in the eyes of the outside world in
general .... The attributes of a particular social group must be recognizable and discrete."
Id. This "distinguishing characteristic" test has been approved by commentators as broader
than Acosta and more in line with decisions of foreign courts. See Fullerton, supra note 19,
at 562. But see John Hans Thomas, Seeing Through a Glass, Darkly: The Social Context of
"Particular Social Groups" in Lwin v. INS, 1999 BYU L. Rev. 799, 807-08 (criticizing the
Gomez test as unworkable and contradictory because the court accepted the Sanchez-Truiillo
voluntary relationship test, see infra note 57; "but not all characteristics perceived by an
outsider are voluntarily chosen but instead may be arbitrarily imposed by the outsider").

In Fisher v. INS, involving an Iranian woman who feared being subjected to
"moral codes," the Ninth Circuit found that persecution "does not include mere
discrimination, as offensive as it may be" and moreover found that "[p]ersecution on account
of sex is not included as a category allowing relief under section 101(a)(42)(A) of the Act."
79 F.3d 955, 962-63 (9th Cir. 1996).

56 801 F.2d 1571 (9th Cir. 1986).

57 Sanchez-Truiillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986). According to the
court, it is of "central concern" that a "voluntary associational relationship" exists among the
purported members, "which imparts some common characteristic that is fundamental to their
identity as a member of that discrete social group." Id.

58 See supra note 43.

59 Kelly, supra note 5, at 648.



2001 ] Gender and "Membership in a Particular Social Group" 181

comparison of these cases nevertheless illustrates the deficiencies of the
indefinite "social group" category. The lack of a uniform legal framework
and the unpredictability in this realm leave many women and girls
unprotected, despite having valid claims.

III. A COMPARATIVE CASE STUDY: DOMESTIC VIOLENCE AS
PERSECUTION ON ACCOUNT OF MEMBERSHIP IN A

PARTICULAR SOCIAL GROUP DEFINED BY GENDER?

A. U.S. Board of Immigration Appeals: In re RA-60

The applicant in this case was a Guatemalan woman who was
forced to flee ten years of brutal domestic violence suffered at the hands of
her husband. Since her marriage to a soldier in the Guatemalan army at the
age of sixteen, the applicant was subjected to heinous psychological and
physical abuse. Her husband raped and beat her repeatedly, forcing sex on
her on a near daily basis, causing infection, severe abdominal injury and
hemorrhaging. He used her body as a battering ram, breaking windows and
mirrors with her head. As a result of the repeated traumas she endured, the
applicant continued to suffer from abdominal pain and headaches. Her
attempts to find protection from the state failed, as the police and judicial
system refused to intervene or protect her. Every time she tried to escape
and relocate in Guatemala she was tracked down by her husband.

The BIA acknowledged that if the claimant were returned to
Guatemala, her husband would hunt her down and try to kill her. It
expressly sympathized with her plight and found that she had been
persecuted. Nonetheless, the BIA ruled that she did not qualify as a
refugee. It reversed the finding of the Immigration Judge (IJ) that the
claimant was persecuted because of her membership in the particular social
group consisting of "Guatemalan women who have been involved
intimately with Guatemalan male companions, who believe that women are
to live under male domination." 61 The BIA both refused the definition of
social group provided by the IJ and found that the claimant failed to prove
that her husband was motivated to harm her, even in part, because of her
membership in a particular social group. As to the definition of "particular
social group," the BIA referred to its own decision in Acosta,62 and

60 In Re R-A-, Int. Dec. 3403, 1999 BIA LEXIS 31 (BIA 1999).

6 1 The IJ also found that "through the respondent's resistance to his acts of
violence, her husband imputed to the respondent the political opinion that women should not
be dominated by men" and therefore granted asylum on political opinion grounds as well.
However, the Board rejected this finding, too. See 1999 BIA LEXIS at *11-12, *19-27.

6 21d. at * 14.



Columbia Journal of Gender and Law

concluded that the proposed group may satisfy the basic requirement of
containing an immutable or fundamental individual characteristic.
However, the BIA went on to state that having an immutable characteristic
does not foreclose the use of additional considerations that may properly
bear on whether a social group should be recognized in an individual case.

Thus the BIA found that for the group to be viable for asylum
purposes, there must also be some showing of how the characteristic is
understood in the alien's society, such that the adjudicators in turn may
understand that the alleged persecutors, in fact, saw persons sharing the
characteristic as warranting suppression or the infliction of harm.63 It held
that the claimant failed to show that the group as defined by the U is a
group that is recognized and understood to be a societal faction, or is
otherwise a recognized segment of the population within Guatemala. 64 The
Board then concluded that an alleged persecutor cannot be motivated to
harm the victim by her membership in a group whose existence itself has
not been proven.65 In addition, the Board pointed out the prominence or
importance of a characteristic within a society. While not determinative, it
found that the "mere existence of shared descriptive characteristics is
insufficient to qualify those possessing the common characteristics as
members of a particular social group.' '66 According to the Board, "the
social group concept would virtually swallow the entire refugee definition if
common characteristics, coupled with a meaningful level of harm, were all
that need be shown. ' 67 With regard to the nexus element (the requirement
that the harm was the result of membership in a particular social group), the
Board's reasoning seems to set an additional hurdle for the applicant: in
order to establish that her husband had targeted and harmed her because of
her membership in the social group, the court found that she should have
shown that she was not the only victim of his abuse. The Board concluded
that "[i]f group membership were the motivation behind his abuse, one
would expect to see some evidence of it manifested in actions toward other
members of the same group. 68

63 Id. at *28.

64 Id. at *29.

65 Id. at *29.

6 Id. at *30-31.

67 Id. at *31. However, in the Board's opinion, the applicant did not show that

spouse abuse is itself an important societal attribute, and failed to show that the characteristic
of being abused is one that is important within Guatemalan society. Id. at *30.

6'Id. at *34.

[Vol. 10:2



2001] Gender and "Membership in a Particular Social Group" 183

This ruling prompted a vigorous dissent by five Board members.
The majority tried to distinguish the present case from In re Kasinga6 9-a
1996 case in which the Board found that the claimant was persecuted on
account of her membership in the particular social group of "young women
of the Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by
that tribe, and who oppose the practice., 70 The minority, however,
analogized the present case to this binding precedent. It demonstrated how
the two cases are legally, factually and analytically similar. The dissent
thus approved the IJ's decision and concluded that the social group was
based on gender, relationship to an abusive partner, and opposition to
domestic violence. 71 The dissenters further argued that it would have been
legitimate to include all Guatemalan women or all married Guatemalan
women in the particular social group.72 It is worth noting that the dissent
stressed the importance of fundamental human rights in gender-related
social group claims. In particular, it referred to important international
women's rights documents and the INS Guidelines which stated that "the
evaluation of gender-based claims must be viewed within the framework
provided by existing international human rights instruments and the
interpretation of those instruments by international organizations. 73

Another important difference in the dissent was the assessment of
the "on account of' or nexus element. The dissenters not only focused on
the husband's motivation but also took into account the State's attitude
toward wife abuse and domestic violence. In their assessment of the
husband's motivation, they found that "[tlhe factual record reflects quite
clearly that the severe beatings were directed at the respondent by her
husband to dominate and subdue her, precisely because of her gender, as he
inflicted his harm directly on her vagina, sought to abort her pregnancy, and
raped her."74 They further noted that the government's egregious failure to

69 In re Kasinga, Interim Decision 3278 (BIA 1996).

70 Id. at 13.

71 1999 BIA LEXIS at *62.

72 Id. at *70 (referring to the House of Lords' judgment in Regina v. Imm. App.
Tribunal, Ex Parte Shah, 2 A.C. 629 (H.L. 1999). See infra Part 111.2).

73 INS Guidelines, supra note 45, at 16. The dissenters noted that the
"international community has recognized that gender-based violence.., is not merely.., a
private matter, [but] rather... a violation of fundamental human rights." 1999 BIA LEXIS
at *71. The majority, however, found that the INS Guidelines did not resolve the issue of
whether or when past spouse abuse may qualify a female applicant as a refugee. Id. at * 16.

74 Id. at *76-77.



Columbia Journal of Gender and Law

act gave her husband the certainty that he could commit his atrocities with
impunity because of the applicant's gender and their relationship.7 5

These arguments, however, were strongly rejected by a majority of
ten Board members. As the majority made clear in its opinion, they felt that
this case was not about persecution on account of gender, but rather about a
person "facing genuine social ills" that her government did not remedy, for
whom "social group" categorization was not applicable.76

The Board's en banc opinion in In re R-A- constitutes a binding
landmark decision on the question of whether violence against and
persecution of women can serve as a basis for political asylum in the U.S.
The decision has garnered national and international attention and has been
widely criticized as being inconsistent with U.S. case law and policy, and as
having a devastating impact on asylum law.77 It seems clear that the Board
interpreted the "particular social group" category more narrowly than the
INS Guidelines recommended and also more narrowly than it had done in
the past.78 Although the Board did not require "voluntary associational
relationship," as stated in Sanchez-Trujillo, 9 it did add more factors of
"cognizableness" that define a "particular social group." The Board seemed
concerned, at least in part, with some "floodgate" arguments when it stated
that the social group concept "would virtually swallow" the refugee
definition if "common characteristics" were all that were necessary to show
membership in a particular social group. 80  With regard to the
cognizableness of the social group one may also ask why the Board

81distinguished R-A- from Kasinga. It seems plausible that the Board was

75 "Identifying why such horrific violence occurs at all," the minority opinion
concluded that just as FGM is a means of controlling women's sexuality, "domestic violence
exist[s] as a means by which men may systematically destroy the power of women, a form of
violence rooted in the economic, social, and cultural subordination of women." Id. at *79.

76 Id. at *52.

77 See Amnesty International (AI), Urgent Action: Gender Asylum Claims;
distributed by Al Columbia Law School on Sept. 23, 1999 (on file with author). According
to AI, a number of major refugee, domestic violence, and human rights organizations,
including the Women's Commission for Refugee Women and Children, Al, the Family
Violence Prevention Fund, and Human Rights Watch have expressed concern about the
Board's decision.

78 See, e.g., In re Kasinga, Interim Decision 3278 (BIA 1996).

79 801 F.2d 1571 (9th Cir. 1986). For further discussion on this decision, see supra
note 57.

'o 1999 BIA LEXIS at *31. See supra note 67.

S For history of Kasing see supra note 29.

[Vol. 10:2



2001] Gender and "Membership in a Particular Social Group" 185

in some way culturally biased, implicitly finding FGM outrageous and
offensive to human dignity, while viewing domestic violence as so common
and widespread that women subjected to it could not be regarded as
belonging to a particular social group.

Considering the Ninth Circuit's own decision in Sanchez-Truiillo, 2 it
is improbable that the court will reverse the Board's decision. In any case,
the Board's ruling remains an important, and certainly negative, precedent
for its own practice and for women's gender-based refugee claims in
general.

B. United Kingdom, House of Lords: Regina v. Imm. App. Tribunal,
Ex Parte Shah8 3

In the remarkable four to one judgment in this case, the Law Lords
of the British House of Lords recognized two Pakistani women as refugees
based on their membership in the particular social group of "women in
Pakistan." The appeals before the Lords concerned two women who both
became victims of domestic violence in Pakistan. The first, Shahanna
Islam, was a graduate schoolteacher. In 1971, she married a man who was
often violent towards her. In 1991, when a fight broke out in her school
between two rival political factions, she intervened. As a result one of the
gangs told her husband that she had been unfaithful to him. Her husband
assaulted her so badly that she was admitted to the hospital twice. His
brutality eventually drove her out of the house. According to the evidence,
because the appellant was a woman, it was useless for her to complain to
the police or the courts. The police were likely to accept her husband's
allegations of infidelity and arrest her instead. The second woman, Syeda
Shah, was frequently beaten by her husband and eventually, when pregnant,
turned out of the house. She fled to England in 1992 and gave birth to a
child soon thereafter. She feared that her violent husband would accuse her
of adultery and assault her, or charge her with immorality before a religious
tribunal. 4

The main issue for the Law Lords was to decide whether the
appellants belonged to a "particular social group" and if so, whether their
fear of persecution was "for reasons of' membership of a particular social
group. 85 In their reasoning, the Lords relied mainly on the U.S. Board of

82 Sanchez-Truiillo, 801 F.2d at 1576.

83 Regina v. Imm. App. Tribunal, Ex Parte Shah, 2 A.C. 629 (H.L. 1999).

84 2 A.C. at 636-37.

85 Id. at 639.



Columbia Journal of Gender and Law

Immigration Appeals' ruling in Acosta8 6 and the Canadian Supreme Court
decision in Ward. 7 They did not accept the practice of adding the elements
of cohesiveness, co-operation, or interdependence to determine the
existence of a "particular social group." Lord Steyn expressly rejected the
Ninth Circuit's ruling on the criteria of social group in Sanchez-Trujillo.88

As to the identification of a particular group, Lord Hoffmann reasoned that
the group must first be identified by the larger society. He found that in the
particular society at hand, Pakistan, "it seems... that women form a social
group of the kind contemplated by the Convention. Discrimination against
women in matters of fundamental human rights on the ground that they are
women is plainly in pari materiae with discrimination on grounds of
race."89 Alternatively, Lord Steyn defined a narrower group -based on the
gender of the appellants, the suspicion of adultery, and their unprotected
position in Pakistan. In particular, he found that this circumscription
adhered to the principle that the group must exist independently of the
persecution in that these three characteristics do not involve an assertion of
persecution. 9° While two different social groups were defined by the Law
Lords, they agreed that the gender-based persecution involved in the case
was sufficient to support a claim of persecution on the basis of membership
in a particular social group.

The Law Lords then turned to the question of causation, that is,
whether the persecution was caused by the victim's membership in a
particular social group. Lord Hoffmann rejected the argument that
"because not all members of a class are being persecuted, it follows that

86 In Re Acosta, 191 & N Dec. 211 (BIA 1985).

87 For more discussion of Ward, see supra notes 23 & 24.

8 2 A.C. at 640-43. Lord Steyn concluded "that there are divergent streams of

authority in the United States. And it may be right to say that the preponderance of U.S. case
law does not support Sanchez-Trujillo." Id. at 641. He further argued against the element of
cohesiveness of the social group in that he accepted that homosexuals are capable of
constituting a particular social group. "But homosexuals are, of course, not a cohesive
group. This is a telling point against the restrictive view in Sanchez-Trujillo's case." Id. at
642.

89 Id. at 643. In accordance with Lord Hoffmann, Lord Steyn found that Acosta's

reasoning "covers Pakistani women because they are discriminated against and as a group
they are unprotected by the state. Indeed the state tolerates and sanctions the
discrimination." Id. at 644.

90 Id. at 645. Regarding the question whether the feared persecution itself can be
an element of the "particular social group" and the different state practice, see infra Part IV.

186 [Vol. 10:2



2001] Gender and "Membership in a Particular Social Group" 187

persecution of a few cannot be on grounds of membership of the class." 9 1 It
is important to note that, in contrast to the BIA in In re R-A-, Lord
Hoffmann focused on the reasons the State did not offer protection to the
appellants.92  Relying on the evidence in the case that showed an
"institutionalized discrimination against women by the police, the courts
and the legal system, 93 he concluded "that the state would not assist them
because they were women. It denied them a protection against violence
which it would have given to men. 94

91 Id. at 653. In the same way, Lord Steyn, in his reasoning about the
characterization of the social group, rejected the argument that the state protection that some
Pakistani women are able to receive would contradict the notion of the large persecuted
social group consisting of "women in Pakistan." With the examples of Nazi Germany and
Stalinist Russia in mind he pointed out that "under even the most brutal and repressive
regimes some individuals in targeted groups have been able to avoid persecution." Id. at
644-45.

92 Id. at. 654. Lord Hoffmann cited the example of a Jew whose business was
destroyed by a competitor and his gang in Nazi Germany because of business rivalry. "They
knew that the authorities would allow them to act with impunity... [because] the victim was
a Jew." As to the question of why the victim was attacked, according to Lord Hoffmann,
"the right answer in the context of the Convention would be 'he was attacked by a
competitor who knew that he would receive no protection because he was a Jew."' Id. at
654.

9' Id. at 655.

94 Id. at 653. Similarly, Lord Steyn found that '[g]iven the central feature of state-
tolerated and state-sanctioned gender discrimination, the argument that the appellants fear
persecution not because of membership of a social group but because of the hostility of their
husbands is unrealistic." Id. at 646.

The other two Lords of the majority, Lord Hope of Craighead and Lord Hutton
mainly joined Lord Steyn and Lord Hoffmann in their reasoning and agreed in the outcome
of the case. Id. at 655-59. It may be noted that Lord Hutton, without further explanation,
preferred the narrower description of "particular social group" as delivered by Lord Steyn
and expressed no view whether "women in Pakistan" constitute such a group. Id. at 658-69.

Lord Millett, in his dissenting opinion, acknowledged "that women in Pakistan are
treated as inferior to men and subordinate to their husbands and that, by international
standards, they are subject to serious and quite unacceptable discrimination on account of
their sex." Id. at 663. However, he rejected the finding that the appellants in the present
case were persecuted because they are women. He reasoned:

[P]ersecution is not merely an aggravated form of discrimination; and
even if women (or married women) constitute a particular social group it
is not accurate to say that those women in Pakistan who are persecuted
are persecuted because they are members of it. They are persecuted
because they are thought to have transgressed social norms, not because
they are women. There is no evidence that men who transgress the
different social norms which apply to them are treated more favourably.



Columbia Journal of Gender and Law [Vol. 10:2

The House of Lords' decision is noteworthy both in its general
view of the Refugee Convention and in its reasoning in the particular cases.
In this sense, the Law Lords, in defining the criteria for the "particular
social group" category, expressly relied on the general purpose of the
Refugee Convention. Referring to the Convention's preamble,95 Lord
Hoffmann concluded that "the Convention is concerned with discrimination
on grounds inconsistent with principles of human rights. 96 He reasoned
that "the framers of the Convention were ... intending to include whatever
groups might be regarded as coming within the anti-discriminatory
objectives of the Convention," when using the general term "particular
social group" in the definition of refugee.97

In considering this particular case, it is important to note the Lords'
discussion of the nexus requirement "for reasons of. . . membership in a

Nor did Lord Millett accept the general proposition that those who are persecuted
because they refuse to conform to discriminatory laws to which they are subject, qualify for
refugee status.

Such persons are discriminated against because they are members of the
social group in question; but they are persecuted because they refuse to
conform, not because they are members of the social group.

Id. at 664
In his concluding remarks he found:

The evidence in the present case is that the widespread discrimination
against women in Pakistan is based on religious law, and the
persecution of those who refuse to conform to social and religious
norms, while in no sense required by religious law, is sanctioned or at
least tolerated by the authorities. But these norms are not a pretext for
persecution nor have they been recently imposed. They are deeply
embedded in the society in which the appellants have been brought up
and in which they live. Women who are perceived to have transgressed
them are treated badly, particularly by their husbands, and the
authorities do little to protect them. But this is not because they are
women. They are persecuted as individuals for what each of them has
done or is thought to have done. They are not jointly condemned as
females or persecuted for what they are.

Id. at 664-65.

95 The preamble states: "Considering that the Charter of the United Nations and the
Universal Declaration of Human Rights ... have affirmed the principle that human beings
shall enjoy fundamental rights and freedoms without discrimination." Refugee Convention,
supra note 1, Preamble, 19 U.S.T. at 6260, 189 U.N.T.S. at 137.

96 2 A.C. at 651. See also Lord Steyn's reasoning, id. at 638-39.

97 Id. at 651.



2001] Gender and "Membership in a Particular Social Group" 189

particular social group. 98  Instead of focusing solely on the husband's
motivation, the Lords relied on the impunity with which he could act and on
the State's reasons for tolerance and sanction of the persecution. This
interpretation of the Refugee Convention's nexus element is perhaps one of
the main differences between the Lords' decision and the BIA's decision in
In re R-A-. Both the Board's majority and dissent referred to the House of
Lords' decision; the dissenting opinion expressly emphasized the relevance
of the level of impunity with which the husband could commit his atrocities
against his wife, while the BIA's majority strongly rejected the Lords'
reasoning.

Considering the differences in the Board's and the House of Lords'
interpretation of the refugee definition, it may be assumed that the applicant
in In re R-A- would have been recognized by the House of Lords as a
member of the particular social group of "Guatemalan women"99 who was
persecuted, at least in part, on account of her gender.

C. Canadian Federal Court of Appeal: Mayers v. Canada (M.E.I.) 100

In Mayers v. Canada (M.E.I.), the Canadian Court of Appeal
unanimously recognized a social group defined as "Trinidadian women
subject to wife abuse."'' 1 As in the Board's and the House of Lords' cases,
the claimant was a victim of spousal abuse. Mayers, a national of Trinidad
and Tobago, fled her home and country in 1986 after she had suffered
fifteen years of abuse and rape at the hands of her violent husband. Her
husband also abused their children. Her attempts to obtain help from the
Trinidadian authorities almost invariably failed and complaints made on her
behalf by her mother and sister were dealt with similarly. The respondent

98 Id. (emphasis added).

99 Since the majority in In re R-A- found that the claim failed under the "on
account of' requirement, it declined to address the issue of whether the claimant belongs to a
"particular social group" consisting of "Guatemalan women" or of "battered spouses" as had
been suggested in the appeal briefs and been approved by the dissenters. Even if the
majority had accepted the "nexus" requirement, it remains unclear whether it would have
agreed to the broader social group category in this particular case. 1999 BIA LEXIS at *32
n.2. In its reference to the House of Lords' judgments, the Board admitted that this decision
would cause it to "part company with at least the rationale expressed in several of the
opinions by the English House of Lords" in which broad notions of "particular social group"
were accepted. It justified so doing, however, by noting that those appeals "arose in ...
different factual setting[s]." 1999 BIA LEXIS 31, *32 n.2.

100 Mayers v. Canada (M.E.I.), [1992] 97 D.L.R. (4th) 729.

'o' Id. at 740.



Columbia Journal of Gender and Law

"never complained specifically of rape as spousal rape was not then an
offence in Trinidad."'

' 2

In its analysis of the phrase "social group," the court examined
administrative practice in Canada, scholarly writing, and the Ninth Circuit's
decision in Sanchez-Trujillo, but did not mention Acosta. It remains
unclear from the court's reasoning what the court inferred from Sanchez-
Trujillo or other precedent.'0 3  The court interpreted the meaning of
"particular social group" using the ordinary dictionary meaning of the
words "women" or "Trinidadian women," and concluded that they did not
constitute a "particular social group."' 04 And while the court, without
further reasoning, did accept "Trinidadian women subject to wife abuse" as
a social group, it posed the question with regard to future decisions: "since
.. .persecution must be feared by reason of membership in a particular
social group, can fear of that persecution be the sole distinguishing factor
that results in what is at most merely a social group becoming a particular
social group?"'10 5 In other words, does fear of persecution change what is
otherwise solely a "social group" to a "particular social group"? As
Fullerton rightly commented: "The language is so opaque, and the
procedural posture of the case so convoluted, that it is difficult to predict
what effect this opinion will have on the development of the social group
concept in Canadian jurisprudence."'0 6 Indeed, due to the justices' focus on
procedural questions and their cursory consideration of refugee women and
the social group concept, no conclusive prediction can be made from this
case about the chances of women fearing gender-related persecution
seeking recognition as refugees by Canadian courts. The Gender
Guidelines issued soon afterwards and the Canadian Supreme Court's
decision in Ward,10 7 however, limited the impact of the "obscurity" of the
Court of Appeal's ruling. Today, courts and applicants cite the Mayers
decision as supportive precedent in gender-related refugee claims.'0 8

102 Id. at 732.

103 However, the court emphasized the importance of international sources and

commentaries. It cited scholarly opinion that criticized the Sanchez-Trujillo court's failure
to take into account international and municipal law that would have revealed a different
notion of the meaning of "social group." Id. at 736.

'04 Id. at 739.

1o5 Id.

106 See Fullerton, supra note 19, at 539.

107 See Canada (Attorney General) v. Ward, [1993] 103 D.L.R. (4th) 1, 33.

108 For example, the dissenting opinion in In re R-A- relied on Mayers. 1999 BIA

LEXIS at *74.

[Vol. 10:2



2001 ] Gender and "Membership in a Particular Social Group" 191

These three decisions delivered by different judicial bodies in
different national jurisdictions reflect the struggles of the judiciary with the
interpretation and definition of a term that is "all-encompassing" and vague.
They also reflect the difficulty decisionmakers and judges have in
overcoming their own perceptions of who is a refugee and who fits into the
definition of refugee. One might ask why the Board's majority in In re R-
A- did not come to the conclusion that the claimant was persecuted "on
account of her gender," instead finding that her plight, while compelling,
was outside the scope of refugee protection. At the same time, one might
marvel that the House of Lords integrated a human's (and a women's)
rights perspective into its reasoning.

Generally, what can be positively noted is the fact that the Board, as
well as the House of Lords, referred to foreign case law and considered
account interpretations and definitions of the "social group" category
developed by judiciaries of other countries. This is, at least, a promising
starting point of a more coherent international practice with regard to
refugee law in general and gender-based persecution in particular.

IV. CRITICAL APPRAISAL OF THE PRESENT PRACTICE AND
CONCLUDING REMARKS

When the Refugee Convention framers drafted the definition of
"refugee" fifty years ago, gender-related patterns of persecution were
ignored. At that time, a choice of a gender-sensitive formula instead of
gender-neutral terms may have prevented the unsettled and unpredictable
case law that has followed. The language defining refugee has created
substantial obstacles for women claiming gender-based persecution on
account of "membership in a particular social group."

Despite the fact that the other four convention grounds are broadly
defined, a social group based on "gender" is sometimes rejected because the
group cannot be identified as a discrete entity or the definition of the group
is considered over-broad.109 The rejections are undeniably coupled with
fears that if a gender-based persecution is accepted, a large influx of aliens
seeking asylum based on gender will follow. This line of argument,
however, misunderstands the function of the categories. Gender, like all
other grounds for persecution, only serves to identify the reasons an
individual is persecuted and does not imply anything larger. I0 The

109 See, e.g., Sanchez-Truiillo v. 1.N.S., 801 F.2d 1571, 1576-77 (9th Cir. 1986).

to See Neal, supra note 21, at 243-44. See also Gender Guidelines supra note 24,

at 6, which state that "[t]he fact that the particular social group consists of large numbers of
the female population in the country concerned is irrelevant-race, religion, nationality and
political opinion are also characteristics that are shared by large numbers of people."



192 Columbia Journal of Gender and Law [Vol. 10:2

recognition that a person is persecuted because she is a woman does not
mean that all other women in a particular country or society are also subject
to persecution. Refugee determination is a remedy based on case-by-case
adjudications, concerned only with the particular circumstances of an
individual case."' Clearly, concerns that the recognition of women from a
particular society as a cognizable social group will open the "floodgates" is
both unpersuasive and misplaced.12

Even when "gender" as a cognizable group is rejected as too broad,
gender-based claims do not need to remain unsuccessful. Women's
identities are not confined to their being female. Women identify
themselves with other innate or unchangeable characteristics, such as age,
marital status, sexual orientation, ethnic or tribal affiliation, and economic
status. Therefore, in many cases a particular social group will be comprised
of sub-groups of women.1 13 In addition, women's social grouping is often
defined by the harm they have experienced, such as sexual violence. 14

However, the creation of a particular social group comprised of
women with shared experiences of gender-based harm runs counter to the

'1' Of course, the limited scope of an individual decision has two sides. On the
one hand, this gives an adjudicative body the possibility of revising a "wrongly" decided
case. On the other hand, the Board's rejection in Kasinga to "endorse a significant new
framework for assessing asylum claims in the context of a single novel case" limits the
positive effects of this important precedent for future gender-based claims. But see Kasinga,
Interim Decision 3278 (BIA 1996) (Rosenberg, concurring) (noting that the majority has set
forth a road map for future gender-based claims).

Moreover, the proof of being a member in a particular social group is generally not
sufficient for a grant of asylum. A refugee claimant has to show that all other elements of
the refugee definition are fulfilled in her case, such as a harm that amounts to persecution
and a fear that is well-founded.

112 See Neal, supra note 21, at 241 n. 192 (stating that "floodgate arguments appeal

more to fear than analysis"), 243 (advancing additional reasons showing that such concerns
are unfounded). See also Peter C. Godfrey, Note, Defining the Social Group in Asylum
Proceedings: The Expansion of the Social Group to Include a Broader Class of Refugees, 3
J.L. & Pol'y 257 (1994) (arguing with regard to gender and sexual orientation-based groups
that the breadth of a social group is not a proper consideration for determining whether a
particular social group is cognizable under asylum law).

113 See Gender Guidelines, supra note 24, at 6. See also Kasinga, Interim Decision

3278 (BIA 1996) (Rosenberg, concurring). She argues that it would have been sufficient to
define the social group without reference to the applicant's opposition to the practice of
FGM. According to her, Kasinga is a member of a group: "girls and women of a given tribe,
some perhaps of marriageable age, whose members are routinely subjected to the harm
which the majority finds to constitute persecution." Id

114 Connors, supra note 9, at 127.



2001] Gender and "Membership in a Particular Social Group" 193

U.S. and the British" 5 court practice. Refugee groups (that is, refugees
sharing a common experience) are not necessarily considered "particular
social groups" by the courts.' 16 Courts have responded negatively to this
approach and have even said, "that the actual persecution cannot be the
defining characteristic of the group; those traits must be discrete."'"17

Therefore, the Mayers v. Canada (MEI) definition of a particular social
group as one that consists of "women subject to wife abuse" would most
likely be dismissed in U.S. courts.

In view of this inconsistent practice which lacks a comprehensive
framework for women's gender-based asylum claims, many commentators
and scholars have called for the inclusion of "gender" as a sixth ground of
persecution in the Refugee Convention and to include gender persecution in
U.S. law."18 Other experts are of the opinion that issues of gender can and
should be dealt with within the existing structure. " 9 While a reformulation
of the refugee definition would be desirable, political realities and trends in
immigration policies inevitably lead to the conclusion that this approach is
not very promising for the near future. Rather, efforts may be focused on
improving the administrative and judicial practices with regard to the
existing conventional and statutory framework. As the issuance of Gender
Guidelines in Canada, Australia and the U.S., as well as undertakings by the
UNHCR demonstrate, important steps toward a more gender-sensitive
adjudication process have been made. However, as the non-uniform U.S.
court practice and decisions like In re R-A- indicate, guidelines do not
guarantee a more predictable practice, nor do they prevent setbacks in
individual cases. Therefore, broad parameters for gendered claims in

115 See Regina v. Imm. App. Tribunal, Ex Parte Shah, 2 A.C. 629 (H.L. 1999).
However, Lord Steyn states: "[W]hile persecutory conduct cannot define the social group,
the actions of the persecutors may serve to identify or even cause the creation of particular
social group in society." Id. at 645 (citing Applicant A. v. Minister for Immigration and
Ethnic Affairs, 71 A.L.J.R. 381, 402).

116 See, e.g., Kelly, supra note 5, at 656-58. See also Connors, supra note 9, at 127

(noting that "[wiomen's claims to be part of a particular social group are also hampered by
the fact that the suffering of applicants is frequently indistinguishable from the suffering
experienced by the general population of women in the country of origin").

117 Bahl, supra note 5, at 68.

i's See, e.g., Emily Love, Equality in Political Asylum Law: For a Legislative
Recognition of Gender-Based Persecution, 17 Harv. Women's L.J. 133, 152 (1994); Mary
M. Sheridan, Comment, In Re Fauziya Kasinga: The United States has Opened its Doors to
Victims of Female Genital Mutilation, 71 St. John's L. Rev. 433, 463 (1997).

119 See Bahl, supra note 5, at 73; Greatbatch, supra note 14, at 526; Kelly, supra

note 5, at 674.



Columbia Journal of Gender and Law

general, and for the social 1roup in the context of gender claims in
particular, would be useful.' 2 Because only a few States have issued
gender guidelines, an international body (most likely the UNHCR) should
expand the guidelines in the interest of developing a more uniform practice
among countries. A further step would be the adoption of an Optional
Protocol to the Refugee Convention which would establish a treaty-
monitoring body vested with powers similar to those of human rights treaty
bodies, like the Committee on the Elimination of Discrimination against
Women (CEDAW). This body would have the authority to issue general
recommendations, view state reports and receive individual complaints of
refugee claimants.

To conclude, I want to emphasize the inter-relationship between
refugee law and human rights law. Refugee law is undoubtedly concerned
with violations of fundamental human rights. Yet the realms of refugee law
and persecution are not only concerned with the level of harm, but also
"connote(s) unacceptable, unjustified, abhorrent infliction of harm."'121 This
qualitative" or "normative"' 122 aspect of persecution is reflected in the five

discrimination grounds. The international human rights agenda has
prioritized gender discrimination and gender violence as especially grave
and pervasive aspects of discrimination. The attitude that women and girls
have a genuine human right to be free from discrimination and violence is
endorsed by numerous international instruments and documents, the
writings of human rights scholars, and the activities of human rights bodies,
NGO's and international organizations. States and the international
community have recognized that gender-based discrimination and violence
are unacceptable, unjustified and abhorrent inflictions of harm. With a
view to the object and purpose of the Refugee Convention, States should
integrate a human rights perspective into application and interpretation of
the refugee definition. More concretely, courts and administrative bodies
should define the "particular social group" category in a liberal and gender-
sensitive way and thus recognize the non-private character of domestic
violence and other types of gender-based persecution.

120 See Connors, supra note 9, at 128.

121 Thomas A. Aleinikoff, The Meaning of "Persecution" in United States Asylum

Law, 3 Int'l J. Refugee L. 5, 12-13 (1991).

122 Id.

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