Positioning Women’s Rights within Asylum Policy: A Feminist Analysis of Political Persecution

Introduction and Methods

As a nation founded by and comprised of immigrants, the United States has surrounded its policy on political asylum with a certain mythology. Although no serious student of immigration policy expects the reality to match the rhetoric emblazoned on the Statute of Liberty, the gendered aspects of the policy have received only cursory public attention, usually in the aftermath of high-profile cases and with clearly articulated fears that a recognition of the fact that sex-based persecution is a political act would open the floodgates to literally millions of refugees. After all, more than half of the world’s population could offer credible claims that their human rights are marginalized, disregarded, or neglected in their home countries, including American women.¹ Such fears have been stated explicitly by courts adjudicating sex-based claims of persecution by women.² However, the anxieties would appear to have little rational basis, as there is a ceiling on the number of asylum petitions that may be granted, and that ceiling is usually not reached.³ Although we grasp the policy concerns voiced by proponents of traditional interpretations of asylum policy that categorize endemic sex-based violence as matters of culture or private action and thus beyond the scope of policy, we argue that such an approach reinforces masculinist norms and privileges the suffering of male refugees over that of their female counterparts. To unmask the male norms embedded in U.S. asylum policy and to bring a feminist perspective to bear on the ways in which the policy exacerbates existing gendered inequities, we trace the experiences of female refugees from the escape to adjudication. By carefully examining the impact of policies, from indefinite detention prior to hearings to establishing a credible fear of persecution in the eyes of judges who regard nervousness or inconsistency as signs of dishonesty (rather than as symptoms of post-traumatic stress) to the actual decisions, we illustrate the ways in which standards derived from male experiences are applied to women, almost always to their disadvantage. While promising developments have occurred, particularly with regard to women fleeing the practice of genital mutilation (FGM), those developments occur in incremental fashion and continue to be the exception rather than the norm.

To elucidate the effect of policies upon the individual lives, we adopt a feminist methodological approach. An aggregated approach that simply examines general patterns and attempts to adapt existing policy to women’s experiences is inherently flawed, in that it assumes the validity of existing policies usually based on male experiences. In effect, to struggle to apply policies incorporating male norms to women and their experiences is to protect patriarchal privilege.⁴ By contrast, grounding our research in the lived experience of women refugees and asylum-seekers allows us to identify and deconstruct the norms that exclude them from relief. Thus, in this work, we engage the standpoint theory approach, an approach that recognizes the distinctive features of women’s situations within the context of a gender-stratified society.

Unlike conventional empirical research, standpoint theory begins with the experiences of those who do not belong to the dominant group and adopts the “standpoint” of the marginalized. It recognizes that all principles and policies are informed by the perspective of those who develop and enforce them and that purportedly objective standards embody and reflect a particular set of norms. It is the dominant group’s interests and values that create a framework not only for political relationships, but also for the study of those relationships.⁵ To avoid adopting the perspective of the politically powerful, which by definition excludes those petitioning for asylum on gendered grounds, we must shift our analysis and examine the laws, policies, and practices of the asylum process from the refugee’s perspective. As women seeking relief have suffered abuses distinct from those suffered by the men around whom the policies were initially created, it is especially important that their experiences be examined and documented. As Annica Kronsell notes, “. . . a central and useful part of standpoint theory is the...