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. (1) Critical scholarship has focussed on refugee law's bias towards recognition of masculinised experiences and on how its categorizations confine women to narrow, victimized identities. (2) 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. (3)
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.
While we acknowledge that there are many valid criticisms to be made of international human rights discourse, our analysis in this article reflects our belief that meaningful consent to marriage is nevertheless a gendered human rights issue of vital importance. We are also aware of concern that policymakers and others either completely conflate arranged and forced marriage or else pose (consensual) "arranged" and "forced" marriages as if they are diametric opposites; whereas consent to all kinds of marriages may take place within a continuum of pressure and coercion. (4) In this article we intend "forced marriage" to include any marriage in which one or both participants have been deprived of the opportunity of free or meaningful consent through threats, including emotional and economic threats, pressure or coercion. Our research has affirmed our understanding that refusal to marry is a flashpoint for expressing non-conformity with expected gender roles for heterosexual women, lesbians and gay men. We proceed from the premise that the state has a role in protecting, and indeed a duty to protect, consent to marriage. This role extends to responding to claims for assistance from citizens and, in some circumstances, non-citizens.
This paper presents results from our study of 168 refugee decisions where part of the claim for refugee protection concerned actual or threatened forced marriage. We gathered every decision available in English that meets these criteria during the past fifteen years from Australia, Canada, the United Kingdom and the United States (the "receiving countries"). (5) In the present discussion, we highlight our findings from the cases from the United States (the American Case), while detailed findings regarding the broader international data set are published elsewhere. (6) While there are notable differences in the cases arising from each receiving country we studied, the American cases stand out as a group distinct from the rest. We found a marked reticence on behalf of American decision makers to grapple with gendered harms in general and forced marriage in particular. Where the American cases do analyze harm as gendered, the discussions are markedly more focused on exoticized elements, such as foreign cultural practices that tend to distance and objectify women, than do decisions from other jurisdictions. The American decisions also tend to describe such practices in prurient detail. Furthermore, the American cases are notably more insular than those from other countries. …