ArticlesVolume 19, Number 4 (2010)

Forced Marriage and the Exoticization of Gendered Harms in United States Asylum Law

Abstract

Refugee law scholars and advocates have devoted a great deal of attention to gender-related persecution since the 1980s. The Office of the United Nations High Commissioner for Refugees (UNHCR) first contended that gender was a valid basis for refugee claims in 1985 and released its original guidelines for the protection of women as refugees in 1991. Critical scholarship has focussed on refugee law’s bias towards recognition of masculinised experiences and on how its┬ácategorizations confine women to narrow, victimized identities. After more than twenty years of concerted effort, one might expect to see an increasingly nuanced refugee jurisprudence concerning gender. With this in mind, we began a study of forced marriage as a basis for refugee claims. While claims of forced marriage or pressure to marry as the, or a, main basis of persecution represent only a tiny portion of refugee claims overall, they provide an illuminating sliver reflecting the major recurring themes in gender and sexuality claims from recent decades. Forced marriage is an important case study of gender in refugee law because it involves longstanding and unambiguous human rights standards, it arises in diverse settings and the harms associated with it take many forms and impact differently depending upon the gender and sexuality of those involved. Our examination of these cases reveals the profound schism between human rights norms and refugee law’s protections.