Protecting Women’s Equality Rights: Refugee Determination

1 February 2000
February 1, 2000

Pursuant to the United Nations 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Canada provides international protection to refugees only if the persecution is “on account of” race, religion, nationality, membership in a particular social group or political opinion…This definition of refugee has been incorporated into Canada’s Immigration Act with only minor changes. As a lawyer for refugee claimants, how can I effectively argue that women’s persecution comes within the refugee definition when in most states women are disempowered, have no access or influence on the religious hierarchy, are virtually excluded from the political process and do not hold positions of influence and power in social groups? How can I show that their persecution is “on account of” one of the stated reasons, when they have been expressly excluded from participation in these very groups in their own societies?

limitations of the human rights approach

Refugee law seeks to protect against violations of “core or fundamental human rights”. These rights are tied closely to those areas where the individual interacts with the state. The requirement that persecution be “on account of” certain activities, is a clear reflection of this link to public activities. The rights considered to be “core” human rights, are those where the person’s interaction is in the public arena: freedom of expression, freedom to practice organized religion, freedom to change the government, and freedom to organize rallies, form trade unions, carry placards and demonstrate in the streets. These are universally understood to be public acts, and violations of these rights are often the basis for the recognition of refugee claims.

Human rights activists tie persecution to the deprivation of fundamental human rights, the markers of which are recognized in international instruments. These include the Universal Declaration of Human Rights, and the International Covenants on Economic, Social and Cultural Rights. In Canada, the Supreme Court has acknowledged this human rights underpinning for refugee status in the case of Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. This analytical framework does not present difficulties when women’s activities mirror those of men, where they are persecuted for their participation in the religious, social or political hierarchies and institutions of their societies. But the traditional human rights approach does not protect women who flee extreme spousal abuse, forced abortions and sterilization, female genital mutilation, arranged marriages, or violations of dress and behaviour codes in fundamentalist states. Where women’s persecution is predicated upon acts that are private, not public, women remain unprotected. Women’s choices to wear make up, or to dress and behave as they choose, even when they bring the approbation and severe punishment of their society, up to and including death, are not actions regarded as engaging core human rights.

An Immigration and Refugee board member in Canada summarized the situation in this way:

Significant numbers of the world population, just like the claimant, who is a woman, have suffered persecution and are routinely subjected to torture, starvation, terrorism, humiliation, mutilation and even murder simply because they are females. If this group were any other group being maimed and killed, other than women, it would be recognized as a civil and political emergency and a gross violation of their humanity. Yet, here we see despite a clear record of deaths and demonstrable abuse, women’s rights are not understood or classified as human rights despite the grave consequences it has on the fundamental issue of women’s lives. (Re X. (I.N.), [1992] C.R.D.D. No. 481)

It is estimated by the United Nations that two-thirds of the world’s refugees are women and girls, yet the majority of refugees who make their way to Canada are men, and it is their cases that form the basis of our refugee jurisprudence. Women and children are far more likely to remain in countries of first asylum in the United Nation’s refugee camps, than they are to find their way to Canada to seek asylum. Therefore, overall, our refugee jurisprudence does not reflect the experience of women refugees.

cultural and traditional justifications

Culture has been the major justification for the failure to afford refugee protection to women. It has been argued that the social control of women in the private sphere and the control of their dress, behaviour and actions is a cultural practice. That women should be veiled, must marry whom they are told, are executed for adultery, have no legal right to custody of their children, or that young girls should be subject to female circumcision, is thus beyond the scope of the refugee definition.

While international human rights instruments recognize a basic code of conduct between governments and their people, they fail to recognize a similar code of conduct between the individuals in a society, even where the state is engaged in enforcing conformity to the conduct, or fails to provide protection from it. Thus, where the state fails to intervene to provide protection to battered wives, to young girls fleeing female circumcision or a host of other types of non-state action, we fail to recognize the victims as refugees.

I am sometimes asked, how can we “judge” other cultural practices and traditions? I am always disturbed by this question, because it ignores the very real struggles of women within their own cultures to bring about change. While there is ready acceptance of this characterization of women’s persecution as “cultural”, it is not without significance that culture is not advanced as a justification for other forms of persecution, for instance, where the cultural practices violate the rights of racial or religious minorities. In my experience, it is always those activities that affect women’s lives that are labelled as cultural and traditional practices.

Thus, Nada, a Saudi Arabian woman, was denied refugee status in Canada after being persecuted because she refused to wear a veil, and wished to pursue a university education. Her claim failed because such practices, even where they were enforced by public stoning and arrest by Saudi Arabia’s unofficial religious police, were seen to be merely cultural differences. In rejecting her claim, two male Board members advised Nada that she “would do well to comply with the laws of her homeland …. and to show consideration for the feelings of her father, who opposed the liberalism of his daughter.” To proponents of cultural relativity, culture trumps all.

the gender guidelines

While Nada herself was not recognized as a refugee, her case and the public outcry that ensued prompted the chairwoman of the Canadian Immigration and Refugee Board to issue guidelines in 1995 on Women Refugee Claimants fearing Gender-Related Persecution. The guidelines address four critical issues: the extent to which women fearing gender related persecution can rely on the five enumerated grounds of persecution; when does sexual violence or other forms of prejudicial treatment of women amount to persecution; what evidence is required; and what special problems do women face in advancing their refugee claims.

Most important however is the official recognition that severe discrimination on the grounds of gender, at the hands of either private citizens or the government, can be considered persecution, and that women who are persecuted for failing to conform to religious, social and cultural practices can also be recognized as refugees. Hence, officially at least, we have rejected an approach that sanctifies cultural and traditional practices, and adopted one which recognizes private persecution.

Despite the promise of the Gender Guidelines, however, the past four years have shown that they have not lived up to initial expectations. Unfortunately, the Gender taskforce set up to develop the guidelines and to oversee their implementation has been disbanded, and many Board members choose to ignore the Guidelines in their decisions, even in cases which call out for their application.

severe spousal abuse

Probably the most difficult cases involve women who flee extreme domestic violence, one of the most widespread human rights violations committed against women. When women flee this type of violence, coming from countries which are similar to our own, their claims challenge practices and discrimination against women which closely mirror our own practices. How can spousal assault be a violation of human rights when we have spousal assault in Canada? We find that the universality of discrimination against women acts as a barrier to the recognition of their individual refugee claims, because they are inevitably judged in reference to Canadian standards. To recognize women refugees under these circumstances challenges our comfortable notions about Canadian society. The universality of women’s oppression forces us to re-examine our own smug notions about which nations are “refugee-producing”, and which are not.

The pervasiveness of the discrimination against women worldwide challenges this belief. The sheer size of the group affected militates against the recognition of the individual claimant’s persecution.

towards real protection for women

Instead of trying to characterize an individual woman as a member of a particular social group, or to stretch her less traditional means of political expression into a political act, it would be preferable to recognize outright that women are persecuted because of their gender, simply because they are women. If the refugee definition were to include “on account of gender” as an additional ground, women would no longer have to show that they were persecuted as a member of a social group, or because of some expanded notion of political opinion.

To provide such protection would constitute a concrete commitment by the international community to many of the United Nation’s declarations, treaties and conventions that address gender-based discrimination and the rights of women. The failure to include gender in the refugee definition in its own right, leaves all of these international commitments without remedial mechanisms, and makes hollow the promise of equality for women. At the end of the day one cannot help asking the question – why are women’s human rights the last to be protected?

**On 6 April 2000, the Minister of Citizenship and Immigration, Elinor Caplan, introduced a new Immigration and Refugee Protection Act (Bill C-31). NAWL will study the proposed legislation in view of developing recommendations to ensure that immigrant and refugee women’s equality rights are effectively respected.

Chantal Tie is an Ottawa lawyer who has been preparing and presenting refugee claims for over 20 years.

about NAWL
The National Association of Women and the Law is a not-for-profit feminist organization that promotes the equality rights of women through legal education, research and law reform advocacy.
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