Avgeri, ‘Comparative report on transgender and gender nonconforming asylum adjudication in the EU and the US’, 2023
- Category: Reports
- Source: NGOs, Academic
- Subject: Gender Identity, Refugee/Asylum, Human Rights
- Place: International, Europe, Americas, Other
- Year: 2023
- File: QIJP Avgeri Unlocal
- URL: https://www.unlocal.org/resource/an-eu-us-comparative-legal-analysis-of-transgender-asylum-adjudication/
Mariza Avgeri, ‘Comparative report on transgender and gender nonconforming asylum adjudication in the EU and the US’, July 2023, Queer Immigrant Justice Project at Unlocal, New York
Abstract
This report attempts a comparative review of the state of the art of asylum adjudication for transgender and gender nonconforming individuals in the US and the EU. The points of reference are the UNHCR Handbook and guidelines on particular social group, burden of proof and LGBTQI+ asylum claims. This report will review the pluralist human rights regime for transgender asylum claimants in the EU drawing on Court of Justice of the European Union jurisprudence as well as the Recast Qualification Directive of the Common European Asylum System, the Charter of Fundamental Rights of the EU and European Asylum Support Office guidelines. At the second part of the research, one will focus on particular social group and persecution practice of Asylum and Immigration Authorities in the US for transgender and gender nonconforming claims which will be juxtaposed with Board of Immigration Appeals and Supreme Court relevant case law. Lack of trans health care and legal gender recognition, as well as the inclusion of gender expression in the asylum grounds will be problematized in the recommendations for the EU/US, as well as the divergence of practice from UNHCR guidelines.
This report will be a tool for advocates and adjudicators, in order to navigate the complex US asylum system for transgender and gender nonconforming claimants with a perspective from the practice in the EU. It will identify divergence of US asylum adjudication for gender identity/expression claims from the UNHCR guidelines and good practices, as well developing Human Rights norms and law on gender identity/expression, for example the Yogyakarta principles as well as other stakeholders and institutional tools. It aims to expand the view of transgender asylum by problematizing sex/gender diversity among asylum claimants, lack of trans health care and legal gender recognition at the country of origin as well as the lack of inclusion of gender expression in asylum adjudication. It aims to provide arguments based on legal research for advocates representing transgender and gender nonconforming claimants on the latter ones’ inclusion to a particular social group for the purposes of asylum and identify circumstances where socio-economic discrimination rises to the level of persecution for transgender and gender nonconforming asylum claimants in the country of origin.