Guest Post — A Response to Professor Musalo: Naming What Matters – Recognition of Gender as a Protected Classification for Refugee Law by M. Isabel Medina
A Response to Professor Musalo: Naming What Matters – Recognition of Gender as a Protected Classification for Refugee Law
By M. Isabel Medina, Ferris Distinguished Professor of Law, Loyola University New Orleans College of Law
In 1980, the United States enacted comprehensive legislation to address refugee admissions to the United States. In doing so, it tracked the definition for “refugee” set forth in the 1954 Refugee Convention and its 1967 Protocol. The international agreement as to the classifications who would be specifically identified for protection included race, religion, nationality and political opinion. Left out, excluded in the international agreement was the other category that stood out both because it had historically been a class targeted for discrimination, persecution and exclusion, even, for political participation globally and in the United States: gender.
In 1954, perhaps even in 1967, the world community rejected freedom from persecution on account of sex as a high value to be accorded the same condemnation as persecution on account of race, religion, nationality and political opinion, notwithstanding the reality that persecution on account of gender was violent, rampant, and widespread. Indeed, state sanctioned gender discrimination and persecution is still accepted throughout part of the global community today.
It is time to correct this serious error. Congress should have known better in 1980. The United States amended its Constitution to ensure the vote to women in 1920, but the Nineteenth Amendment did little to change the laws excluding and allowing lawful persecution and discrimination of women. In 1964, the United States enacted legislation prohibiting discrimination on the basis of sex in employment. But it took decades to breathe life into the promise of the Civil Rights Act of 1964. It took a mostly peaceful revolution in the latter half of the 20th Century to address the exclusion of women from public and political life, sometimes mandated by law, that allowed for gender related violence and violence targeting women to thrive unaddressed by the law. But by 1980, the United States Supreme Court had recognized gender as an invidious and illegitimate classification when used by the state, and the growing consensus over the course of the last 50 years on the importance of gender equality rights that culminated in the United States Supreme Court decision of Bostock v. Clayton County, 590 U.S. __ (2020), and in the Me Too Movement, should make clear that it is time to add “gender” to the named groups who will receive recognized consideration for admission to refugee status for persecution claims.
Professor Musalo rejects proposals to add “gender” as one of the proscribed grounds of persecution and her views are entitled to serious consideration because undoubtedly no one has done more to change asylum law to accommodate gender-based claims than Professor Musalo. But Professor Musalo’s focus is narrow and it reflects efforts to work within the existing legal structure of asylum claims, a structure that reflects efforts by immigration agencies to limit the reach of asylum law – to make it easier to deny asylum to a population that the United Nations High Commissioner for Refugees currently estimates at 4.2 million asylum-seekers, 26 million refugees and 45.7 million internally displaced persons. Prior to the Trump administration, the United States led the world in refugee admissions.[1] In fiscal year 2016 the U.S. resettled 84,994 refugees and in fiscal year 2015 the U.S. granted asylum to 26,124 individuals.[2] The latter figure represented an increase from the prior year. Our asylum law allows for a miniscule number of the millions of asylum seekers to access safety through legal residency in the United States.
Professor Musalo’s reasons suggest that simply adding gender to the groups won’t make it easier for gender-based persecution claims to succeed. This is probably true. Most asylum claims of any kind filed with the United States fail. The asylum system as a whole operates to make it easier for claims to be denied. Professor Musalo points out that the way federal agencies have developed the “particular social group” in general itself needs reform. That is not a good reason to withhold recognition that governments should not persecute persons because of their gender, gender identity or gender orientation.
Naming what is valued matters. If we follow Professor Musalo’s reasoning then the fact that Title VII of the Civil Rights Act of 1964 failed to correct deeply gendered pay structures and gender related harassment and discrimination in the United States, means that adding “sex” to the statute did not make a difference. Or that the enactment of the Violence Against Women Act and its many amendments has not eliminated or ensured strong enforcement of rape and sexual assault claims or has not eradicated the incidence of gender related battering, means that it was the wrong approach to addressing gender related violence in the U.S. Only to state the propositions makes clear the fallacy.
Law’s greatest power may lie in its communication of societal values. Persons who are persecuted on account of gender in all of its dimensions should not have to argue at the threshold that they are deserving of protection from persecution as a particular social group (not defined purely by gender or sex because if it is defined by reference to gender or sex then the group is too large to be protected). That they may still have to jump through the other hoops that asylum law has set for them doesn’t change the impact of not having to establish the legal niceties of the particular social group category. Some of the problems that Professor Musalo focuses on are problems that face all of the named protected categories –persons who claim persecution on account of political opinion or race or religion or national origin. Asylum law norms need to be reformed. It is time for the United States to step up and make gender recognized claims a part of their domestic law of asylum. This brings parity to our own domestic law of gender. It makes clear: the United States believes persecution on account of gender in all of its dimensions is prohibited and persons who suffer on account of their gender are entitled to protection under U.S. law. That the international community has failed to lead on proscribing gender based persecution should not justify the failure of the United States to do so as well.
Asylum law is under pressure to change: forced migration or displacement of persons is likely to increase in the decades to come and much of it may be unrelated to persecution on account of any of the proscribed grounds and instead related to climate change. But that is a matter for a different blog.
Endnotes
[1] Refugee admissions is distinct from countries that actually host or house large numbers of refugees without giving them formal admission to residency or a pathway to citizenship.
[2] Jie Zong and Jeanne Batalova, Refugees and Asylees in the United States in 2015, Migration Policy Institute, June 7, 2017.
KJ