Developing a Jurisprudence of Transgender Particular Social Group

'Developing a Jurisprudence of Transgender Particular Social Group' in Thomas Spijkerboer (ed) Fleeing Homophobia, Routledge 2013, pp121-153

UTS: Law Research Paper No. 2013/1

41 Pages Posted: 20 Aug 2013 Last revised: 27 Jul 2014

See all articles by Laurie Berg

Laurie Berg

University of Technology Sydney, Faculty of Law

Jenni Millbank

University of Technology, Sydney, Faculty of Law

Date Written: August 19, 2013

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

Suggested Citation

Berg, Laurie and Millbank, Jenni, Developing a Jurisprudence of Transgender Particular Social Group (August 19, 2013). 'Developing a Jurisprudence of Transgender Particular Social Group' in Thomas Spijkerboer (ed) Fleeing Homophobia, Routledge 2013, pp121-153, UTS: Law Research Paper No. 2013/1, Available at SSRN: https://ssrn.com/abstract=2312887

Laurie Berg

University of Technology Sydney, Faculty of Law ( email )

Sydney
Australia

Jenni Millbank (Contact Author)

University of Technology, Sydney, Faculty of Law ( email )

Australia

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