A recent posting on the blog Women and Foreign Policy by Carol Bohmer and Amy Shuman argues that “cultural, social and political attitudes and expectations can affect how a woman’s claim for asylum is evaluated by the authorities” and that such claims are treated “differently” and “less well” by those asylum authorities:

Most of the ways that the political asylum treats women differently are not articulated in policy but rather are implicit in the hearing processes, especially notable in explanations for denials of asylum.  In our work, we have categorized these as 1) how credibility is tied to gendered practices in the asylum hearings themselves, especially expectations of women’s demeanor; 2) gendered expectations about the content of women’s accounts of the violence and persecution they have experienced; 3) more general discrimination against women applicants, who are not taken seriously or whose legitimacy depends on additional requirements; and 4) evaluation of women’s political action is sometimes regarded as either not political enough or as belonging to such a general category that granting political asylum would “open the floodgates” to too many individuals.

My initial reaction to the claim that women and men are treated differently by Asylum Officers and Immigration Judges is one of skepticism.  For one thing, a good proportion of IJs, DHS Trial Attorneys, and Asylum Officers are women.  Not that one woman cannot discriminate against another, but we’re not talking about Phyllis Schlafly here–most of the women working in the system are very progressive on women’s issues.  Second, at least in my experience, the people involved in the system strive to apply the law equally and objectively, and tend to be cognizant of issues affecting women and girls.  Finally, in some ways, women are treated better by “the system” in that certain categories of relief exist specifically to protect women (female genital mutilation as persecution); other categories are used more frequently by women than by men (domestic violence, forced marriage, and human trafficking as persecution).

On the other hand, of the 40 or 45 asylum seekers I represented in 2010 and 2011, I lost five cases: four of them were women and the fifth was a gay man.  I had not really thought about this before, but it is surprising that 80% of the denied cases involved female asylum seekers.  I am still not convinced that gender played a role in these defeats, but I suppose my mini cohort provides some anecdotal support for Ms. Bohmer and Ms. Shuman’s thesis.  

With regard to the legal grounds for claiming asylum, Ms. Bohmer and Ms. Shuman make an important point:

When asylum officials reject a case, they are not necessarily saying that someone didn’t suffer a trauma….  Instead, when, for example, they deny a case about rape or domestic violence because the rape or violence was not political and/or because the woman was not persecuted as a member of a targeted social group, they are saying that the catastrophe, the trauma, the violence was part of another realm, crime, ordinary everyday crime, rather than political persecution.  Women, as people seen to occupy ordinary, domestic life, rather than political (public) life, are more likely to be the victims of crime.

This seems to me an important and often overlooked point–asylum was created to provide protection to people in the public sphere.  Such people tend to be men (though this is slowly changing).  Asylum was not designed to protect people who face persecution in the private sphere.  The recent efforts to expand the definition of asylum to include victims of FGM, domestic violence, forced marriage, and human trafficking are aimed at broadening the definition of asylum to include persecution that occurs in the private realm.  These efforts have generally involved litigation, not legislation.  It seems too bad that international legislative bodies and the U.S. Congress have not done more to protect people (women) who face these types of non-public persecution.  Perhaps the study by Ms. Bohmer and Ms. Shuman will help move the law in a direction that is more protective of female asylum seekers.