Gender

Gender in Election Law

A concept that refers to the social differences between women and men that have been learrned, are changeable over time and have wide variations both within and between cultures.

Gender Balance in Election Law

Participation of an approximately equal number of women and men within an activity or organisation, including, for example, representation in committees or in decision-making structures.

Gender Blind in Election Law

Ignoring or failing to address issues of gender equality.

Gender Mainstreaming in Election Law

The process of assessing the implications for women and men of any planned action, including legislation, policies or programmes, in all areas and at all levels. It is a strategy for making women's as well as men's concerns and experiences an integral dimension of the design, implementation, monitoring and evaluation of policies and programmes in all political, economic and societal spheres, so that women and men benefit equally and inequality is not perpetuated. The ultimate goal is to achieve gender equality.

Gender Mainstreaming (in an Election Management Body) in Election Law

Process of assessing the implications for women and men of any planned action, including legislation, policy or programmes, in all areas and at all levels. Gender mainstreaming in Electoral Management Bodies (EMBs) ensures that both women's and men's concerns and experiences are fully taken into account in the design, implementation, monitoring and evaluation of all activities. This includes the recruitment of women at all levels of the administration such as staffing polling stations. Through this process, the EMB seeks to reduce gaps in opportunities between women and men and work towards equality as an integral part of the organisation's strategy, policies and activities.The ultimate goal is to achieve gender equality.

Gender Perspective in Election Law

Also refered to as 'looking through the gender lens'. Using a gender perspective means approaching or examining an issue, paying particular attention to the potentially different ways that men and women are or might be impacted.

Gender Responsive in Election Law

Refers to a planning process in which programmes and policy actions are developed to deal with and counteract problems which arise if the socially constructed differences between women and men are not adequately addressed.

Gender Roles in Election Law

Behaviour in a given society or community or other special group that conditions which activities, tasks and responsibilities are perceived as male and female. Gender roles are affected by age, class, race, ethnicity, religion and by the geographical, economic and political environment. Changes in gender roles often occur in response to changing economic, natural or political circumstances, including development efforts.

Gender Specific Indicator in Election Law

measure that reveals progress (or lack thereof) towards targets and objectives. A gender specific indicator is a means of measuring what actually happens, against what has been planned in terms of quantity, quality and timeliness of policies to promote gender equality. An example is measuring the number of seats held by women in parliament.

Gender Stereotype in Election Law

Simplistic generalisation about personal attributes, behaviours and/or roles of a specific social group. Gender stereotypes are biased and often exaggerated images of women and men, which are used repeatedly in everyday life.

Gender as a particular social group and the Refugee Issues

As published by the UNHCR in relation to Gender as a particular social group: UNHCR has recognized that sex qualifies as a defining characteristic of a particular social group, both in the PSG Guidelines discussed above, and in the Guidelines on Gender-Related Persecution in the context of the 1951 Convention (UNHCR Gender Guidelines).70 The UNHCR Gender Guidelines express two preliminary points of relevance: first, the distinction between sex, a biological determination, and gender, a social or cultural construction of “identities, status, roles and responsibilities” determined by sex,71 and second, the historical context within which the 1951 Convention was written and through which it has been interpreted which focuses on the “male experience,” leaving gender related claims largely in the shadows.72 These points are relevant in challenging the preconceived ideas about who is a refugee and the nature of the refugee experience in order to recognize gender-related claims of persecution.

Despite the definite distinction between gender and sex, national jurisdictions most often use the terms 'gender' and 'sex' interchangeably, making it even more difficult to assess the definitional requirements of gender-related claims. With respect to the second issue, national jurisdictions have struggled with the formulation of standards applicable to gender-related claims in response to the relatively recent developments in international law, recognizing that women have unique and specific experiences and that the laws must reflect these distinctions. The UNHCR Gender Guidelines are explicit in the conclusion that gender-related claims are included within the definition of refugee contained in the 1951 Convention, 73 but the willingness of national jurisdictions to heed this suggestion remains uncertain.

It is promising that national jurisdictions have progressively determined that women face particular issues in the refugee context, visible through the enactment of gender guidelines applicable to the refugee determination process. The Immigration and Refugee Board of Canada issued updated guidelines on gender-related persecution in 1996. The guidelines provide that “[g]ender is an innate characteristic and, therefore, women may form a particular social group within the Convention refugee definition.”74 It is furthermore possible to recognize more particularized sub-groups within this category which combine gender with other characteristics, for example, “age, race, marital status and economic status.”75

The guidelines issued by the Australian government are somewhat less definitive than the Canadian guidelines; however, they seek to recognize gender as a “significant factor” in identifying a particular social group. The guidelines acknowledge the findings of the Australian Refugee Review Tribunal that, despite the immensity of the category, “women nonetheless have both immutable characteristics and shared common social characteristics which may make them cognisable as a group and which may attract persecution.”76

The United Kingdom issued guidelines in 2000 which provide that certain characteristics, such as “gender, age, race, marital status, family and kinship ties, sexual orientation, economic status and tribal or clan affiliation,” may identify particular social groups where the characteristics are “innate or unchangeable … or characteristics that a woman should not be expected to change.”77 The cultural and social context, in addition to the perception of state officials and perpetrators of persecution, is relevant in the determination of whether these characteristics are innate or unchangeable.78 Decided prior to the enactment of the guidelines, the Islam and Shah case recognized women in Pakistan as a particular social group, applying the reasoning of the United States BIA in Acosta, because women in Pakistan are “discriminated against and as a group they are unprotected by the state.”79 The House of Lords cites the Australian High Court's example of left-handed men for support that this recognition does not violate the principle that the group in question must exist independently of persecution.80

Applying this theory to the present case, it could be argued that the discrimination against women in Pakistan and the lack of protection provided by the State, serves to make women recognizable as a particular social group by society, but it is the characteristic of being a woman that defines the group. It is further explained that the fact that some women in Pakistan may be able to avoid persecution and obtain protection from the State does not impact the determination that women in Pakistan are a particular social group; it simply means that those particular women would not maintain a well-founded fear of persecution necessary for a positive refugee status determination.81

In the K and Fornah case, the House of Lords examined the preamble to the 1951 Convention, concluding that the statement that “human beings should enjoy fundamental rights and freedoms without discrimination”82 indicated the intention to recognize only “persecution which is based on discrimination.”83 If discrimination is the unequal treatment of persons similarly situated, then it is clear that persons targeted for persecution in a particular society for one of the five enumerated reasons in the 1951 Convention are subject to discrimination. The Fornah case involved a girl from Sierra Leone who was fleeing forced female genital mutilation (FGM). While it was shown that there was evidence of generalized discrimination against women in Sierra Leone, it was also determined that it was only women who have not undergone FGM who were “disparaged” within tribes practicing FGM .84 It was not explicitly stated that the general inferior position of women in Sierra Leone was a necessary factor in finding a gender-based particular social group.

Moldova, a more recent case decided by the Asylum and Immigration Tribunal in the United Kingdom, expanded on the notion of discrimination espoused in the above cases with respect to gender-related claims of persecution.85 The case involved the trafficking of a national of Moldova into the U.K. for the purpose of sexual exploitation.86 The victim previously provided evidence that resulted in the prosecution and conviction of the individual responsible for her exploitation in the U.K.87 In the present case, the victim was seeking asylum based on her fear that, if she were returned to Moldova, she would face persecution from the perpetrator, who had been released from prison, and/or his family and associates.88 The Tribunal summarized the relevant authorities in the U.K. relating to membership in a particular social group and concluded that “where the particular social group being relied upon is the broad one of gender or where any features to narrow the group are gender-based, then discrimination against the gender (i.e. discrimination in the wider sense) must be shown to exist.”89

The Tribunal went on to explain that it is not necessary to show generalized discrimination in cases involving the recognition of the family as a particular social group because the family already exists in society as a particular social group, independent of the persecutory actions.90 Furthermore, if a showing of discrimination is necessary in these cases, it may be established in connection with the feared future acts of persecution without resulting in a circulatory definition based solely on the feared persecution.91 The Tribunal's emphasis on a requirement for general discrimination in situations involving gender based persecution does not appear to be in line with the interpretations presented by UNHCR.

The UNHCR Handbook explains that acts of discrimination exist in many societies which do not attain the level necessary to constitute persecution.92 Only in certain situations will discrimination amount to persecution; for example, where discriminatory measures result in “serious restrictions on [the] right to earn [a] livelihood, [the] right to practise … religion, or access to normally available educational facilities.”93 Discrimination may also amount to persecution where it results in an individual's subjective feelings of “apprehension and insecurity” with respect to her continued existence or the cumulative effects of discrimination might be viewed as attaining a persecutory nature.94 The UNHCR Gender Guidelines include the above analysis and also address discrimination in the form of a State's failure to provide protection in certain circumstances, for example, in situations involving domestic violence or harms targeted at individuals because of his or her sexual orientation.95 Discrimination is analyzed by UNHCR in the context of assessing the individual's well-founded fear of persecution, specifically, determining whether acts of discrimination amount to persecution for purposes of refugee status determinations.

The repeated use of the term 'broad' to describe the category of gender indicates the United Kingdom Tribunal's apparent concern with an over-inclusive interpretation of gender as a particular social group. In seeking to employ a narrower interpretation of this category, the Tribunal seems to confuse the requirements for a well-founded fear of persecution and membership in a particular social group in the interpretation of the refugee definition. Discrimination is a possible method of persecution according to UNHCR; it is not a characteristic that defines a particular social group. While discrimination may support an individual's claim of persecution, there is no requirement for a showing of general patterns of discrimination with respect to the categories of race, religion, nationality or political opinion and thus, should not be required of individuals claiming membership in a particular social group.

Moreover, the Tribunal explains that the discrimination requirement only applies to gender-based social groups and not social groups defined by other characteristics. The U.K. cases illustrate a progression with respect to discrimination and gender-defined particular social groups which is disconcerting. It evidences the establishment of an additional burden on victims of gender-related persecution seeking asylum in the U.K. which is not faced by victims claiming persecution on one of the additional protected grounds.

In 1995, the United States issued the Gender Guidelines discussed above. The Guidelines provide little assistance to asylum adjudicators in determining whether gender may appropriately define a particular social group, either alone or in connection with other characteristics. In this regard, the Guidelines highlight the differing interpretations among the federal courts in the United States,96 drawing in particular on the decision of the BIA which considered that sex is a characteristic that may potentially define a particular social group,97 as well as the limited pronouncement by the UNHCR Executive Committee that women may qualify as a particular social group where they have “transgressed the social mores of the society in which they live.”98

More recently, the BIA addressed the issue of gender related persecution in the case In re Kasinga, involving female genital mutilation (FGM).99 The BIA determined that the particular social group of the applicant was “young women of the Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice.”100 It was necessary to apply the reasoning outlined by the BIA in Acosta to the characteristics represented in members of this group to validate the group within the refugee definition. In applying this reasoning, the Board explained that the characteristics of being a young woman, untouched by the practice of FGM and a member of the tribe in question were all unchangeable characteristics supporting recognition of the applicant's membership in a particular social group.101 This case was a crucial step in United States refugee law, explicitly recognizing gender as a defining characteristic of particular social groups.

Several States maintain reservations to the inclusion of gender as a ground for persecution under the 1951 Convention. The UNHCR Gender Guidelines have responded to those opponents that fear the inclusion of gender as a particular social group would result in a massive influx of refugee claims. The Guidelines explain that this interpretation of the 1951 Convention does not mean that all women will automatically be granted refugee status, but that they will be required to show that they maintain a well founded fear of persecution on one or more of the convention grounds.102 Furthermore, size should never be a factor disallowing recognition of women as a particular social group where the other four categories are in no way constrained by the potential size of the group.103 Both the guidelines of Canada and the United Kingdom address this particular point of concern relevant to the discussion of gender as a particular social group, illustrating the weakness in the argument of those opposing inclusion of gender based on excessive claims. Utilizing the same language the guidelines state, “The fact that the particular social group consists of large numbers of the female population in the country concerned is irrelevant — race, religion, nationality and political opinion are also characteristics that are shared by large numbers of people.”

Despite the existence of guidelines which challenge the perceived threat of opening the floodgates to women claimants, this fear is pervasive in United States immigration decisions. For example, a federal appeals court verbalized this fear explicitly in a case involving a young Albanian woman claiming a fear of being kidnapped and forced into prostitution.104 The applicant argued for the recognition of broader social group categories, inclusive of gender, citing support from another federal appeals court decision which recognized Somalian females as particular social group.105 The Court responded to this argument, “We do not necessarily agree with the Ninth Circuit's determination that virtually all of the women in Somalia are entitled to asylum in the United States.”106

This statement illustrates the Court's misunderstanding and misapplication of the requirements relating to refugee status. Each individual claiming refugee status must still show that she is persecuted for reason of her gender, in addition to any additional defining characteristics, and that the State is unable or unwilling to provide protection from that persecution.107 The purpose of the 1951 Convention is the protection of individuals fleeing persecution. This purpose is undermined by superfluous arguments that recognizing gender as a characteristic targeted by agents of persecution will result in a flood of refugee claims from women. This is comparable to saying that race should not be an accepted grounds for persecution because all racial minorities would be entitled to refugee status. This argument fails to credit the additional hurdles an individual must overcome within the context of the 1951 Convention definition of refugee.

Gender (in the Human Development Area)

In this context, Gender means:

the set of social, cultural, political, legal and economic characteristics socially allocated as a function of a woman or a man from birth onwards. It is the distinct social significance of being female or male in a given culture. Social and cultural constructs, created on the basis of sexual differences, determine the way that women and men interact so they determine the distribution of power within a society. Because it is a socio-cultural construct, it changes over the course of history and varies from one culture to another.

Gender, Law and Sexuality

Contents of Gender, Law and Sexuality

Contents of this subject matter include:

The Gender & Sexuality of Law
Trans-ness
Equality & Privacy
Hatred , Violence & Victimization
Relationships
Activism, Change, the State

Literature Review on Gender and Public Administration

In the Encyclopedia of Public Administration and Public Policy, [1] DeLysa Burnier offers the following summary about the topic of Gender and Public Administration: This entry provides an overview of the evolving gender perspective within public administration. First, it describes feminist/gender theory. Second, it highlights the contributions public administration gender scholars have made in the areas of history, theory, and practice. Third, it concludes by proposing a care-centered conception of public administration.

Introduction

Gender

This entry provides an overview of the legal framework of gender, with a description of the most significant features of gender at international level.

Related Work and Conclusions

Resources

References (Papers)

Agency, Equality And Courage: A Case Study Of Women On The Front Lines Of Egypt'S 2011 Revolution, Carol Gray, Nov 2017
Left Behind: How The Absence Of A Federal Vacatur Law Disadvantages Survivors Of Human Trafficking, Jessica Emerson, Alison Aminzadeh, Oct 2017
The End Of Religious Freedom: What Is At Stake?, Nelson Tebbe, Sep 2017
Femmes, Migration, Et Prostitution En Europe: Il N'Est Pas Question De “Travail De Sexe”, Anna Zobnina, Sep 2017
From Queen Bees And Wannabes To Worker Bees: Why Gender Considerations Should Inform The Emerging Law Of Workplace Bullying, Kerri Lynn Stone, Aug 2017
Dissenting From History: The False Narratives Of The Obergefell Dissents, Christopher R. Leslie, Jul 2017

Resources

Notes and References

Entry about Gender and Public Administration in the Encyclopedia of Public Administration and Public Policy (2015, Routledge, Oxford, United Kingdom)

Gender

Gender

Gender in Election Law

Gender Balance in Election Law

Gender Blind in Election Law

Gender Mainstreaming in Election Law

Gender Mainstreaming (in an Election Management Body) in Election Law

Gender Perspective in Election Law

Gender Responsive in Election Law

Gender Roles in Election Law

Gender Specific Indicator in Election Law

Gender Stereotype in Election Law

Gender as a particular social group and the Refugee Issues

Gender (in the Human Development Area)

Gender, Law and Sexuality

Contents of Gender, Law and Sexuality

Literature Review on Gender and Public Administration

Introduction

Gender

Related Work and Conclusions

Resources

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References (Papers)

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Notes and References

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Further Reading

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