Developing a Jurisprudence of Transgender Particular Social Group

Abstract

In this Chapter, we analyse refugee status determinations (RSD) in claims brought by applicants who articulate a fear of persecution on the basis that they are transgender, broadly defined to include those who are transsexual, cross-dressing, transvestite or who identify strongly with another gender. Our study all of all publicly available decisions which concerned gender identity made by administrative tribunals and courts in Australia, New Zealand (NZ), Canada, the United Kingdom (UK) and the United States (US) indicated that, while trans claims appeared relatively successful the jurisprudence in this area is fundamentally incoherent. We argue that the specific issues raised by trans asylum claims must be examined within an overarching analysis of persecution related to gender non-conformity – a framework which allows for complex intersections between sexuality, gender identity and gender. Attending to the claimant’s experience of gender non-conformity requires a careful and flexible process of setting out the particular social group.

Keywords: refugee law, gender identity, gender related persecution, transgender, transsexual

JEL Classification: K33