Finding the Fundamental: Shaping Identity in Gender and Sexual Orientation Based Asylum Claims

Article excerpt

Within the United States and globally, gender and sexual orientation form the basis of an increasing number of rights claims and protections. Both grounds, which reflect the expanding notions and challenges of identity-based rights, have been incorporated into United States asylum law with varying success. The extension of asylum to include some claims based on gender and sexual orientation has real and immediate significance for many individuals. However, securing protection in an individual case sometimes creates precedents that make it more difficult to prevail in future asylum claims, and that limit conceptions of gender and sexual orientation within the broader movement for human rights.

To obtain asylum in the United States, an applicant must be a member of a particular social group targeted for persecution on the basis of a characteristic so fundamental to identity that it cannot or should not be required to change. J Applying this standard, adjudicators seek to understand what about gender or sexual orientation unites a group of people to the extent that it places members collectively at risk of persecution. Thus, the surest way for applicants and advocates to demonstrate that the asylum standard is met is to put forward a familiar and universalized picture of the persecuted woman, lesbian, or gay man, minimizing variability or complicating factors in the individual case. These firm but under-theorized depictions of gender and sexual orientation create and reinforce limited conceptions of identity and culture that make it more difficult to raise new asylum claims within these established categories. Existing asylum law should incorporate a more careful analysis of the harms that occur in these claims, particularly the successful ones, in order to find and permit a more robust view of identity and culture.

Part I of this Article examines the development of U.S. asylum law and its incorporation of new identity-based claims based on gender and sexual orientation. Part II uses gender-based asylum claims to illustrate that the implicit search for fixed and fundamental characteristics to identify a particular social group creates a limited narrative of how identity is shaped and operates within culture. Part III argues, using examples of sexual-orientation-based asylum claims, that the current asylum analysis used by U.S. administrators and courts, which focuses on defining a fundamental identity characteristic, erases expressions of variability. Thus, gay men and lesbians are molded, through their individual asylum claims, into a particular, western characterization of queer identity.

This possible narrowing of gender and sexual orientation based asylum claims is not a necessary outcome of the asylum process. In Part IV, this Article proposes a new method of analyzing asylum claims, which this Article terms an axis-oriented approach. This method posits that in assessing whether a social group possesses a fundamental characteristic that binds its members, as required by the asylum standard, adjudicators should explicitly identify the generalized axis of identity, such as gender or sexual orientation, before turning to the applicant's specific articulation of identity. This importantly shifts the focus away from an isolated inquiry into the scope and persecution of the subordinate identity. By recognizing a broader framework, the adjudicator can assess the existence of a particular social group within the context of a dominant identity norm, such as heterosexuality or gender hierarchy, to evaluate the persecution claim with more analytical rigor. Axis-oriented analysis serves as an alternative to analyses that attempt to enforce a dominant norm. This approach protects individuals without requiring asylum-seekers to show that the society they are seeking relief from has completely institutionalized certain norms. It also allows the asylum standard to remain open to iterations of an identity trait recognized as fundamentally important to humanity. …