Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, November 10, 2015

Recognizing Gender as a Basis for Asylum

Melanie Randall (W. Ontario), Particularized Social Groups and Categorical Imperatives in Refugee Law: State Failures to Recognize Gender and the Legal Reception of Gender Persecution Claims in Canada, the United Kingdom, and the United States,   23 American J. Gender, Social Policy & Law 529 (2015)


The difficulties establishing effective legal remedies for gendered harms and gender inequalities are perhaps nowhere more starkly evident than in refugee law, where women’s appeals for safe refuge from gender persecution continue to face formidable legal obstacles.  In spite of significant jurisprudential advances in recent years, these obstacles to women’s claims for asylum persist at a time when the world’s refugee crisis is exploding.  Roughly half of the world’s refugees are women and girls who face particular vulnerabilities and violations as a result of their gender.
There have indeed been important and positive advancements in the reception of women’s asylum claims in many of the main refugee-receiving countries, including interpretive guidelines allowing adjudicators to be more gender sensitive in deciding refugee cases. But a fundamental and persistent problem with the adjudication of women’s gender persecution based refugee claims still lies in the byzantine set of definitional hurdles imposed by asylum decision makers trying to fit claimants who have suffered gender persecution into “particular social groups.” This problem always circles back, in part if not exclusively, to the failure to name gender as a ground on which the persecution can be named and recognized.
This legal absence, in and of itself, represents a state failure to protect refugee women seeking asylum in these countries.  This is also a failure of each state’s purported commitment to gender equality.  This failure persists in Canada, which prides itself as a nation whose identity is founded upon migration and refugee flows, as well as in other commonwealth countries such as the United Kingdom, Australia, and New Zealand.  It is perhaps most sharply evident in the United States, where gender is not only absent as a ground upon which to claim persecution, but where the requirements of fitting gender asylum claims into the membership in a “particular social group” category, are arguably the most detached from the guidance offered by the United Nations High Commissioner for Refugees (UNHCR), and most at odds with more progressive developments in other jurisdictions.
Gender’s absence as a ground of persecution is obviously not the only procedural or definitional obstacle to women’s asylum claims. Among other problematic elements of the refugee process for women who have suffered gender persecution, one glaring area of difficulty (among others) is the set of issues surrounding the analysis of state protection.  Adding gender to the statutory definition of a refugee and recognizing it statutorily as a ground of persecution is not a panacea, merely a foundational step forward.  As Deborah Anker has persuasively observed, “gender, properly understood, should pervade the interpretation of every element of the refugee definition.”
In order to avoid these well documented and persistent taxonomies of gender, to comply with international human rights norms, and to achieve consistency and justice, gender must become an independently recognized and identified ground of persecution in the statutory refugee law of receiving states such as Canada, the United States, and the United Kingdom.  While this is certainly not a sufficient solution to the multiple barriers too often facing women’s gender persecution asylum claims, it is certainly a necessary and overdue one.

November 10, 2015 in Gender, International | Permalink | Comments (0)

Thursday, November 5, 2015

"Because it's 2015"

Slate, Canada's Justin Trudeau's Gender Equal Cabinet "Because it's 2015"

Trudeau on Wednesday continued his hot streak by introducing his 30-person cabinet that had just as many women as men—a first for the country.


Justin Trudeau is ushering in a new era in Canadian politics with a cabinet that is reflective of the country’s ethnic diversity, peppered with rookie politicians, and composed of more women than ever before… After the swearing-in ceremony, Mr. Trudeau addressed reporters and other members of the public outside Rideau Hall saying he was proud to “present to Canada a cabinet that looks like Canada.”

When asked why he opted for gender equity, Trudeau responded: “Because it’s 2015.” The current 16-person cabinet in the Obama administration, by comparison, is made up of just 25 percent women.


November 5, 2015 in International | Permalink | Comments (0)

Sunday, November 1, 2015

South Korean Court Recognizes No-Fault Divorce

A court has granted a divorce to a man who was responsible for the breakup of his marriage by cheating on his wife, overturning the lower court's ruling.

It is the first court decision that allowed a divorce sought by a cheating spouse after the Supreme Court's ruling in September that expanded the grounds for divorce in limited cases, although it largely upheld the legal principle that bans a party responsible for destroying the marriage from filing for divorce.

Following the ruling, similar divorce requests are expected from estranged couples who have been barely maintaining a paper-only marriage relationship.

November 1, 2015 in Family, International | Permalink | Comments (0)

Wednesday, October 28, 2015

UAE imprisoning rape victims under extramarital sex laws – investigation

From the Guardian UK: 

Hundreds of women, some of them pregnant or domestic servants who are victims of rape, are being imprisoned in the United Arab Emirates every year under laws that outlaw consensual sex outside marriage, according to a BBC Arabic investigation.

Secret footage obtained by BBC Arabic show pregnant women shackled in chains walking into a courtrooms where laws prohibiting “Zina” – or sex outside marriage – could mean sentences of months to years in prison and flogging.

“Because the UAE authorities have not clarified what they mean by indecency, the judges can use their culture and customs and Sharia ultimately to broaden out that definition and convict people for illicit sexual relations or even acts of public affection,” said Rothna Begum, women’s rights researcher at Human Rights Watch in London.

While both men and women could in theory be imprisoned for having sex outside marriage, the investigation – which will air at the opening of BBC Arabic festival on 31 October – found that in reality pregnancy is often used as proof of the “crime”, with domestic female migrant workers – numbering about 150,000 in the UAE – left most vulnerable.

October 28, 2015 in Courts, Human trafficking, International, Work/life, Workplace | Permalink | Comments (0)

Saturday, October 24, 2015

The Day Iceland Women Went on Strike for Equality -- 40 Years Ago Today

BBC, The Day Iceland's Women Went on Strike

Forty years ago, the women of Iceland went on strike - they refused to work, cook and look after children for a day. It was a moment that changed the way women were seen in the country and helped put Iceland at the forefront of the fight for equality.


When Ronald Reagan became the US President, one small boy in Iceland was outraged. "He can't be a president - he's a man!" he exclaimed to his mother when he saw the news on the television.


It was November 1980, and Vigdis Finnbogadottir, a divorced single mother, had won Iceland's presidency that summer.  The boy didn't know it, but Vigdis (all Icelanders go by their first name) was Europe's first female president, and the first woman in the world to be democratically elected as a head of state.


Many more Icelandic children may well have grown up assuming that being president was a woman's job, as Vigdis went on to hold the position for 16 years - years that set Iceland on course to become known as "the world's most feminist country".


But Vigdis insists she would never have been president had it not been for the events of one sunny day - 24 October 1975 - when 90% of women in the country decided to demonstrate their importance by going on strike.

October 24, 2015 in International | Permalink | Comments (0)

Friday, October 23, 2015

Tokyo Ward to Start Issuing Same-Sex Partnership Certificates

From the WSJ blog: 

Tokyo’s Shibuya ward said Friday that it will start accepting applications for same-sex partnership certificates beginning next week after passing an ordinance earlier this year that permits the ward to recognize the partners equivalent to those married under the law.

According to the ward, same-sex couples applying for a certificate must both reside in Shibuya and be at least 20 years old. They must also be unrelated and have no spouses or other same-sex partners. The ward will also require that the couple submit notarized documents proving their relationship.

The ward said it will start issuing the certificates beginning Nov. 5.

October 23, 2015 in International, LGBT | Permalink | Comments (0)

Wednesday, October 21, 2015

"When Women's Rights Are Not Enough"

From HuffPost: 

Around the world, women in 155 countries face legal restrictions on the economic opportunities available to them, according to the recent World Bank Group's reportWomen, Business and the Law 2016, which highlights the challenges women face in the global economy and underscores the need for legal reform.

These legal barriers are just the beginning of the obstacles women face to accessing economic opportunities. Establishing women's equality in the law is critical, but more work is needed to dismantle the social and cultural norms that prevent women from knowing and accessing their rights.

October 21, 2015 in International | Permalink | Comments (0)

Friday, October 16, 2015

"A new law to save minors from survival sex will force them into state custody"

From the Guardian UK:

It’s not novel that minors in the US can, in very rare cases, be sentenced to reform programs or secure confinement for actions that wouldn’t be illegal if adults did them. But the system used to punish youth for the likes of skipping school or drinking has never been used systematically to address cases where minors engage in survival sex – meaning, youths who exchange sex for money, shelter, food, drugs or other needs.


That is about to change, even though treating juveniles charged with prostitution like truants will increase arrests and extend court-involvement and institutionalization of victims.

October 16, 2015 in International | Permalink | Comments (0)

Monday, October 12, 2015

Only the third constitution to guarantee LGBT rights

From HuffPost: 

In the midst of earthquake reconstruction and political violence in the country's south, Nepal's new constitution provides a reason for many citizens to celebrate -- particularly its lesbian, gay, bisexual, transgender, and intersex (LGBTI) community.

After more than seven years of deliberation, on September 20, Nepal's President Ram Baran Yadav promulgated the small Himalayan country's historic constitution. It stands as the first national constitution in Asia--and only the third in the world along with South Africa (1996) and Ecuador (1998)--to include explicit rights and protections for LGBTI people.

October 12, 2015 in International, LGBT | Permalink | Comments (0)

Friday, October 9, 2015

"Delhi Court Protects Transgender Teen"

From Human Rights Watch: 

"Everyone has a fundamental right to be recognized in their gender," the Delhi High Court declared this week in a short but powerful judgment that vindicates the rights of India’s transgender people.

The court stepped in to protect Shivy, a 19-year-old transgender man studying neurobiology in California, who was being mistreated by his parents during a family holiday to India. Shivy said his parents confined him to his grandparents’ home in Agra, took away his Indian passport and United States residency card, and compelled him to enroll in a university in Agra. When he ran away, his parents reported him to the police, who searched for him and reportedly harassed activists who had assisted him.

October 9, 2015 in International, LGBT | Permalink | Comments (0)

Thursday, October 8, 2015

The Unintended Consequences of Canada's Equal Rights Amendment

The Unintended Consequences of Canada's Equal Rights Amendment

Section 28 of the Canadian Charter of Rights and Freedoms was supposed to be a game changer for women. It reads: "Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons." But lawyer, Trudeau Foundation scholar, and Queen's University PhD candidate Kerri Froc says it has been used to hurt women's rights instead of advance them. 


Froc would like to see Section 28 - which was modelled on the proposed American Equal Rights Amendment - rehabilitated to protect and promote women's rights, as it was intended.  




Right after the Charter was entrenched, there was a flurry of activity with respect to sex discrimination cases but most of it was brought by men, essentially attacking some of the very few legislative provisions that protected women. There was a case concerning social assistance benefits that gave some small protections to single mothers and what the courts said was, 'Section 28 requires absolute equal treatment between men and women, you can't have that.' So it struck down that benefit.

h/t Sonia Lawrence

October 8, 2015 in Constitutional, International | Permalink | Comments (0)

Friday, September 25, 2015

"Chinese Leader to Address UN on Gender Equality, Vexing Some"

From the NYT: 

BEIJING — Chinese leader Xi Jinping will preside this weekend over a U.N. conference on gender equality, which some activists say is galling given China's recent detentions of women's rights activists and its history of stopping people from attending U.N. meetings to discuss such issues.

Scheduled to draw more than 80 national leaders at the United Nations' headquarters in New York on Sunday, the meeting co-hosted by China comes 20 years after Beijing held a groundbreaking U.N. conference on women's rights in which Hillary Clinton equated women's rights with human rights.


China has made some progress in women's rights since then, including the introduction of local-level regulations against domestic violence, but much remains to be done in bringing women into positions of power. Only two women are in the Communist Party's powerful 25-member Politburo.

September 25, 2015 in International | Permalink | Comments (0)

Wednesday, September 2, 2015

LGBT Rights (or lack thereof) in Tunisia

From the Guardian: 

Nawel was in Tunis’s city centre when it happened. “This guy came up to me from nowhere. He was dressed really religiously and, without any warning, he just slapped me across the face – and the weird thing was that it wasn’t just the slap. It was that no one did anything. They all just carried on. It was if I deserved it.”

Nawel shakes her head, still stung by the casual indifference of the crowd. There isn’t anything unusual about her that might mark her out for attack. With her short hair, jeans and T-shirt she is indistinguishable from many other young women.


Tunisia’s attitude to its lesbian, gay, bisexual and transgender (LGBT) community goes beyond the social. Article 230 of Tunisia’s constitution forbids acts of sodomy, with those found guilty facing jail sentences of up to three years. Article 226 rules against outrages to public decency, a catch-all law often used to target the country’s trans community. Both laws date from 1914 and remain untouched by the 2011 revolution and the subsequent rush to reform.

Much of the focus for Tunisia’s LGBT pushback has focused on the pressure group Shams, which campaigns for the repeal of Article 230. But an organisation formed in June last year is providing a feminist alternative. Chouf, whose members see themselves primarily as visual activists, offers a desperately needed safe haven for Tunisia’s most isolated and vulnerable groups, its lesbian, bisexual and trans communities.

September 2, 2015 in Constitutional, International, LGBT | Permalink | Comments (0)

Wednesday, August 19, 2015

"Latin America's Transgender-Rights Leaders"

From the New Yorker: 

About three weeks before the U.S. Supreme Court legalized same-sex marriage, the Colombian government issued a directive that received little international notice. On June 4th, the government announced that it would allow Colombian citizens to change their gender on identity documents without first undergoing gender-reassignment surgery or obtaining permission from a medical professional. These requirements, which remain in place, either in whole or in part, in the U.S. and most of the rest of the world, were “profoundly invasive of the right to privacy and based upon an impermissible bias,” said Yesid Reyes, the minister of justice. “The construction of sexual identity and gender is a matter that does not depend on biology.”


England and Spain passed the first laws making it easier for a person to change her gender on official documents, in 2004 and 2007, respectively, and Uruguay followed suit in 2009. Three years later, Argentina passed the most progressive gender-identity law in the world. Not only are Argentines spared the usual requirement of reassignment surgery or a medical diagnosis to change identity documents, but medical practitioners are bound by law to provide them with free hormone treatment and gender-reassignment surgery. Colombia’s decree, which was issued by the president, lacks the reach and force of Argentina’s legislation, but it is striking just the same. Now, in Colombia, all an individual has to do to change his or her gender on official documents is appear before a notary public.

August 19, 2015 in International, LGBT | Permalink | Comments (0)

Monday, August 17, 2015

"Jihad and Girl Power: How ISIS Lured 3 London Teenagers"

From the NYT, a seeming contradiction between women's rights and radical Islam: 

....young women attracted to what some experts are calling a jihadi, girl-power subculture. An estimated 4,000 Westerners have traveled to Syria and Iraq, more than 550 of them women and girls, to join the Islamic State, according to a recent report by the Institute for Strategic Dialogue, which helps manage the largest database of female travelers to the region.


They were smart, popular girls from a world in which teenage rebellion is expressed through a radical religiosity that questions everything around them. In this world, the counterculture is conservative. Islam is punk rock. The head scarf is liberating. Beards are sexy.

Ask young Muslim women in their neighborhood what kind of guys are popular at school these days and they start raving about “the brothers who pray.”

“Girls used to want someone who is good-looking; nowadays girls want Muslims who are practicing,” said Zahra Qadir, 22, who does deradicalization work for the Active Change Foundation, her father’s charity in East London. “It’s a new thing over the last couple of years. A lot of girls want that, even some nonpracticing girls.”

August 17, 2015 in International | Permalink | Comments (0)

"The village where men are banned"

Umoja women

From the Guardian, an intriguing story: 

Jane says she was raped by three men wearing Gurkha uniforms. She was herding her husband’s goats and sheep, and carrying firewood, when she was attacked. “I felt so ashamed and could not talk about it to other people. They did terrible things to me,” says Jane, her eyes alive with pain.

She is 38 but looks considerably older. She shows me a deep scar on her leg where she was cut by stones when she was pushed to the ground. In a quiet, hesitant voice she continues her story. “I eventually told my husband’s mother that I was sick, because I had to explain the injuries and my depression. I was given traditional medicine, but it did not help. When she told my husband [about the rape], he beat me with a cane. So I disappeared and came here with my children.”


Jane is a resident of Umoja, a village in the grasslands of Samburu, in northernKenya, surrounded by a fence of thorns. I arrive in the village at the hottest time of the day, when the children are sleeping. Goats and chickens wander around, avoiding the bamboo mats on which women sit making jewellery to sell to tourists, their fingers working quickly as they talk and laugh with each other. There are clothes drying in the midday sun on top of the huts made from cow dung, bamboo and twigs. The silence is broken by birdsong, shrill, sudden and glorious. It is a typical Samburu village except for one thing: no men live here.

August 17, 2015 in International, Manliness, Masculinities | Permalink | Comments (0)

Thursday, August 13, 2015

Amnesty International Votes to Decriminalize Prostitution

Slate, Amnesty International Will Call for Decriminalizing All Prostitution

Amnesty International will support the decriminalization of all elements of prostitution—including paying for sex and facilitating sex-for-money transactions—after a vote of some 400 delegates at a meeting in Dublin, the New York Times reports:
The proposal about prostitution provoked an aggressive lobbying campaign by international groups opposed to sparing buyers and pimps from penalties. Competing petitions were organized by women’s groups and celebrities— including former President Jimmy Carter, who issued a letter on Monday — appealing to the group to maintain penalties for buyers and to “stay true to its mission.”

Countries including Germany, the Netherlands, and New Zealand already have the kind of highly tolerant policies Amnesty will now advocate for, the BBC says, while the Times notes that Sweden's and Norway's laws fall somewhere between prohibition and decriminalization; in those Scandinavian countries, prostitution itself is legal but paying for sex can be punished with "heavy fines and prison terms."

The proposed language of the new Amnesty policy cautions that sex-work practices "that involve coercion, deception, threats, or violence" should continue to be considered unacceptable before asserting that "the available evidence indicates that the criminalisation of sex work is more likely than not to reinforce discrimination against those who engage in these activities, to increase the likelihood that they will be subjected to harassment and violence, including ill-treatment at the hands of police, and to lead to the denial of due process and the exclusion from public benefits such as health services, housing, education, and immigration status."

August 13, 2015 in Human trafficking, International | Permalink | Comments (0)

Monday, August 3, 2015

"Andy Burnham: men convicted for being gay should get automatic pardons"

From the Guardian UK: 

An automatic legal pardon should be given to all men convicted under historical homosexuality laws without the need for families or individuals to apply to the government, the Labour leadership contender Andy Burnham has proposed. His pledge, following consultation with Sir Keir Starmer, the former director of public prosecutions and current Labour MP, means it would be possible to quash up to 50,000 convictions for acts that would be not be illegal today.

Burnham, who currently shares roughly the same number of constituency nominations as Jeremy Corbyn, said he will press prime minister David Cameron to make a relatively simple change to the law, but if he does not do so, it would form part of the first legislative programme of a Burnham-led government. The move comes two years after the royal pardon granted to second world war codebreaker Alan Turing.

Were there any women convicted the referenced law?  

August 3, 2015 in International, Legal History, Legislation, LGBT | Permalink | Comments (0)

Friday, July 31, 2015

"Law Society reveals 42 per cent gender pay gap among members"

From Scotland:  

New research by the Law Society of Scotland shows a 42 per cent gender pay gap among its members, the lawyers’ body has revealed.

The figure was reached by comparing average full-time and full-time equivalent (for part time/flexible hours employees) salaries for women and men at all career stages.


Janet Hood, convenor of the Law Society’s equality and diversity committee said the gap “reflects very badly on what is otherwise a modern and forward-thinking profession”.

She added: “There are many and nuanced reasons why the gender pay gap exists, and the legal profession is certainly not alone – figures from November 2014 show that the overall UK gap was 9.4 percent.

“However we have seen little change in the past decade compared to other professions such as accountancy or dentistry and it is a major concern that such a substantial gap persists 45 years after the UK Equal Pay Act and 10 years of Law Society equality research and promoting good practice within the legal profession.”

Ms Hood said the issue could not be ignored “for either ethical or business reasons” and there should be “no limit” set on the talent and ambition of women in the sector.

The referenced report by the Law Society of Scotland is available here.  

July 31, 2015 in International, Women lawyers, Work/life, Workplace | Permalink | Comments (0)

Wednesday, July 29, 2015

Fathers Discriminated by Citizenship Law

Unfortunate that I had missed this story earlier this month: 

A U.S. law that treats mothers and fathers differently in determining whether their foreign-born children may claim U.S. citizenship is unconstitutional, a federal appeals court ruled on Wednesday, four years after the U.S. Supreme Court split 4-4 on the issue.

The 2nd U.S. Circuit Court of Appeals in New York said the statute applied "impermissible stereotyping" in imposing a tougher burden on fathers.

The law requires unwed fathers who are U.S. citizens to spend at least five years living in the United States - a 2012 amendment reduced it from 10 years - before they can confer citizenship onto a child born abroad, out of wedlock and to a partner who is not a U.S. citizen. For unwed U.S. mothers in the same situation, the requirement is only one year.

Wednesday's ruling is likely to have a limited effect in terms of the number of people it applies to, but the decision addresses important principles regarding ‎laws that explicitly treat the sexes differently, legal advocates said.

**the story continues here.  

July 29, 2015 in Family, International, Manliness, Masculinities | Permalink | Comments (0)