Since the establishment of the Islamic government in Iran, many Iranian women have fled their homeland fearing gender-related persecution by their government. Their refugee claims have been some of the most compelling because the oppression women face in Iran is not simply the result of the government's inability or unwillingness to prevent violent acts against women by public authorities or private citizens but is institutionalized by a plethora of laws and policies intentionally devised to abrogate the human rights of women and to circumscribe their lives. Furthermore, women who oppose these laws and policies are faced with drastic sanctions from the authorities themselves.
What is Gender-Related Persecution?
Gender-specific persecution is violence, discriminatory treatment, or repressive measures directed at women specifically because they are women. It includes sexual assault, infanticide, genital mutilation, bride-burning, dowry related murders, forced marriage, domestic violence, forced abortion, compulsory sterilization, and forced prostitution. Persecution of women also takes the form of imposing repressive and discriminatory laws and practices to oppress and subordinate women, such as the compulsory wearing of the veil in Islamic countries. Nada's case is one well-publicized example of a claim involving gender-related persecution, of how such claims have been trivialized and dismissed, and of how subsequent positive changes in the conception of gender-related forms of persecution have affected such claims.
A Saudi Arabian Woman, identified as Nada, sought asylum in Canada because "[she] was a woman" who believed she was a victim of gender-based persecution in her own country. When Nada began removing her face veil in public, "men threw stones at [her] or called [her] a prostitute." Saudi Arabia's religious police attempted to arrest her simply because her face was uncovered. Thus Nada made the decision to leave her country. She waited three years for a passport and even then her brother had to accompany her out of the country.
Nada was initially denied refugee status because Canada did not recognize gender-based persecution as a ground for refugee status. The Convention Refugee Determination Division (CRDD) 4 panel hearing her case castigated Nada for her effrontery. Two male members of the CRDD even 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 [was] opposed to the liberalism of his daughter."
However, on January 1993, the Canadian government, reacting to the Canadian public outcry, announced it would allow Nada to stay in Canada only on "humanitarian grounds", thereby making it clear that a "new, gender-based asylum category" had not been recognized. [Jan Goodwin, From the Valley of the Chador, MIRABELLA, April 1994]
Then in March 1993, amid public outcry over Nada's case and several other well publicized incidents regarding the plight of women who had made unsuccessful refugee claims based on gender related persecution, Canada adopted Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution. These Guidelines made a range of recommendations for effectively evaluating and accepting claims such as Nada's.
As a result of many years of struggle by feminist, human rights, refugee, and immigration activists, the right to protection for refugee women has received more recognition in recent years. The fact that women often face different types of human rights violations than men, have different reasons for fleeing, and thus have different bases for establishing their eligibility for refugee status is now more understood in western countries where women seek refuge.
As a result, there have been some inspiring decisions on Iranian women's gender-related refugee claims. The treatment of women in Iran has been often used by scholars to illustrate, in extreme, the type of milieu in which gender persecution can be found.1 Nevertheless, this trend still does not guarantee that Iranian women claiming asylum based on gender-based persecution will find the relief they deserve. For example, in the US, all previous precedent decisions (Court decisions) on Iranian gender claims have been negative, despite the increase in the past couple of years in the number of administrative positive decisions.
Article 1A (2) of the 1951 UN Convention defines a refugee as a person with a "well-founded fear of persecution" on account of "race, religion, nationality, membership in a particular social group, or political opinion". To determine whether or not a person is a refugee, an individual must first demonstrate a "well-founded fear of persecution." Next s/he must show that it is based on one or more of the grounds enumerated in the Convention.
As the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status notes, there is no universally accepted definition of persecution. While the lack of an accepted and authoritative definition of persecution is a problem common to evaluating all asylum claims, women's claims are further disadvantaged because the existing bank of jurisprudence on the meaning of persecution is based on, for the most part, the experiences of male claimants.
For the purpose of refugee determination, there is general consensus that mistreatment of any individual rises to the level of "persecution" when the abuse, or the threat thereof, is considered a serious violation of human rights. Therefore, the linkage between persecution and the abrogation of basic human rights is key to recognition of a woman's "well-founded fear" of gendered persecution. Despite the fact that a woman's right to be free from gender-based discrimination is codified in several international human rights instruments,2 defective interpretations of what constitutes "human rights" of women continue to lead to misevaluation of gender-related claims.
One typical misevaluation is exemplified in a recent administrative decision in Canada. The claimant, an Iranian woman, had four confrontations with Iranian authorities over perceived infractions of the Islamic dress law. The Refugee Division however found that the claimant had encountered what all women in Iran have to cope with daily: "petty and arbitrary harassment by a puritanical regime." It stated that "the dress code was an ordinary law of general application and did not violate a basic human right" and concluded that the four incidents constituted only "harassment," and "not persecution". The Refugee Division further suggested that should the claimant be "cautious", she will have "no problems whatsoever" with the authorities in her country.3
This decision represents a typical failure to recognize that the restriction on dress in Iran is a direct violation of a woman's right to freedom of religion and conscience. Additionally, it fails to put the dress-law in the right social and political context, where it is only one strand in a web of oppression restricting the ability of Iranian women to function as autonomous and independent individuals. Finally, it fails to consider that the penalty for violation of the rule is disproportionately severe in relation to the infraction and thus even if one rejects the contention that the proscription does not constitute persecution, one should conclude that the penalty is. In fact, some courts have already considered the Iranian "dress law" to be a "persecutory law" because of the "disproportionate penalty women face for disobeying it (seventy-five lashes without any procedural guarantees)"4
Even if a woman is able to establish that the degree of oppression and discrimination exercised by the state or its agents rises to the level of persecution or results in a well-founded fear of persecution, she must next show that her fear is based on one or more of the grounds enumerated in the Convention. Because "gender" is missing as an independent ground in the Convention refugee definition, women have to establish that their gender-based persecution is based upon race, religion, nationality, political opinion or a particular social group.
Since late eighties efforts to expand the meaning of a "particular social group" under Article 1A (2) of the 1951 UN Convention to include women or subgroups of women have particularly gained grounds. There have also been efforts to determine certain forms of persecution directed against women on grounds of "political opinion" and "religion".
However, Iranian women have faced further complications in fitting their claim in one of these grounds. One fatal element has been the restrictive interpretations of requirements for establishing a "social group". For example, the claim of an Iranian woman based on the particular social group of "westernized middle class women" was denied in Britain because the court held that since the group did not hold a "common belief or practice" it lacked "identifiability".5 The court suggested that women who are subject to gender-related persecution in Iran are required to show that they are an organized entity in order to establish a social group. It, therefore, failed to recognize that while women may not consciously organize as a group opposed to the regime, they may, nevertheless, be targeted by the government for group persecution. The group's identity is therefore formed by the government's targeting of the group.
In contrast, Germany's Federal Office for the Recognition of Refugees granted asylum to an Iranian woman who based her fear of persecution on a specific social group, "Iranian women". The Office ruled that "the ideologically based power of men over women results in a general political repression of [Iranian] women in defiance of their individual liberties and human rights."6 Such inspiring decisions, however, are scarce.
A common reason for denial of gender claims based on "political opinion" is that such claims, are often considered as "private" and "personal" matters, even when the perpetrator is the government. For example, in one case that an Iranian woman was accosted by the Revolutionary guards in the street on at least fifteen occasions for refusing to wear a veil before fleeing Iran, a US Court ruled that her actions in not complying with the dress law were just "personal attire decisions" rather than "political activities". Because of the Court's failure to comprehend the political dimensions inherent in her refusal to comply with the strict gender laws of Iran, the woman was, therefore, determined not to have a well-founded fear of persecution by reason of her "political opinion".7
In contrast, another asylum petition based on "political opinion", received positive opinion by a Federal Court in Canada which held that "in a country where the oppression of women is institutionalized any independent point of view or act opposed to the imposition of a clothing code will be seen as a manifestation of opposition to the established theocratic regime."8
In the context of the Convention refugee definition, the notion of religion encompasses the freedom to hold a belief system of one's choice or not to hold a particular belief system and the freedom to practice a religion of one's choice or not to practice a prescribed religion. Nevertheless, in considering the basis of persecution of another Iranian women who claimed non-compliance with Iran's religious laws, religion was ruled out as a valid basis simply because the woman said that she was not religious.9
Yet, in another decision, noting that non-compliance with the Shari'a, Iran's religious law, entailed severe penalties, an Iranian women who had been lashed in Iran for meeting clandestinely with her boyfriend and was expecting a child from her new relationship after her flight from Iran was found to face persecution on grounds of "religious precepts and cultural norms".10
These brief examples show that although Iranian women's gender-based refugee claims can and occasionally have easily fit in the Convention's refugee definition, it is still difficult to establish that the abrogation of women's fundamental human rights constitutes persecution under one or more Convention protected grounds.
By reviewing more cases involving Iranian women who have applied for refugee status on gender-related grounds in future, we will examine in more details, the circumstances in which the violations of human rights faced by women in Iran have constituted persecution and the extent to which Iranian women making gender-based claims of persecution have successfully relied on the categories of political opinion, religion, and particular social group to obtain relief. In conclusion, we will address the proper social and political context which the claims of Iranian women should be adjudicated and will propose a framework for evaluating the cases of Iranian women involving gender-specific persecution.
1 See, for example, Women as a Social Group: Recognizing
Sex-Based Persecution as Grounds for Asylum, David L. Neal, Col. Human
Rights Law Review, Vol. 20, No. 1, 1988.
2 A woman's right to be free from gender-based discrimination is codified in several international instruments. For example, article 7 of the U.N. Declaration of Human Rights ensures that "[a]ll are equal before the law and are entitled without any discrimination to equal protection of the law." The Convention of the Elimination of All Forms of Discrimination Against Women defines sex discrimination as any "sex-based distinction which has the effect or purpose of detracting from women's human rights and fundamental freedoms." As a result, discriminatory practices against women, which directly violate these international principles, are violations of fundamental human rights. As such, they should be considered a form of persecution for purposes of refugee determination. .
3 CRDD A96-00092, July 26, 1996 (REFLEX). .
4 P. N. v. Minister of Employment and Immigr. of Can., Fed. Ct. of Can., Trial Div. Nov. 5, 1993. .
5 MMG. v. Secretary of State for the Home Department, TH/9515/85, as cited in, 7 Case Abstracts, IJRL, Vol. 1, No 3, July 1989, and referenced in Refugee Women: Establishing a Prima Facie Case Under the Refugee Convention, M. Jane Kronenberger, ILSA J. INT'L L.,Vol. 15, No. 33. .
6 Title not given (Ref: 24 Nov 1988, Bundesamt Anerkennung ausl. Fluchtlinge 439-26428-86) .
7 F. K. v. INS, Legis 21716 (10th Cir. 1993) referenced in Case Note and Comment: Recognizing Gender-Based Persecution as Grounds for Asylum, Daniel McLaughlin, , 13 Wis. Int'l L.J., Fall, 1994. .
8 See supra note 4. .
9 See supra note 5. .
10 CRDD V94-01847, June 21, 1996 (REFLEX).