Millbank, ‘Sexual Orientation and Gender Identity in Refugee Claims’, 2021

Jenni Millbank, ‘Sexual Orientation and Gender Identity in Refugee Claims’, in Cathryn Costello, Michelle Foster, and Jane McAdam (eds.), The Oxford Handbook of International Refugee Law, OUP, 2021

Abstract

This chapter explores two key themes in modern refugee jurisprudence concerning sexual orientation and gender identity (SOGI) claims over the past 35 years. First, there is a persistent, indeed widening, gap between the formal acceptance of SOGI claims in refugee law—broadly taken to include authoritative international guidance, interpretative norms, and binding domestic precedent—and the implementation of such law through the low-level administrative practice that comprises the vast bulk of refugee status determination (RSD). Secondly, although SOGI claims are often considered as marginal or exceptional cases, they should be seen as a key axis from which to understand major developments and failings of refugee law across the board. The chapter then suggests that SOGI claims are a paradigm example of the ontological challenges at the heart of RSD. These include the enduring challenges posed by fact-finding and evidentiary practices such as future-focused risk analysis, credibility assessment, and the interpretation of claims across culture.

Keywords: sexual orientation, gender, asylum, refugees, asylum, human rights, international law